Local 103, Electrical Workers

National Labor Relations Board - Board Decisions

Jan 3, 1977

227 N.L.R.B. 685 (N.L.R.B. 1977)

LOCAL 103, ELECTRICAL WORKERS
Local 103, International Brotherhood of Electrical
Workers (IBEW) and Siemens Corporation. Case
1-CD- 479
January 3, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Siemens, Corporation, herein also
called the Employer or Siemens, alleging that Local
103, International Brotherhood of Electrical Workers
(IBEW), herein called Local 103 or the Union, had
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the assignment of certain work to
employees represented by Local 103 rather than to
employees of the Employer.
Pursuant to notice, a hearing was held before
Hearing Officer Robert C. Rosemere, on May 27, and
June 1, 2, 29, and 30, 1976,1at Boston, Massachusetts.
The Employer and Local 103 appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to present
evidence bearing on the issues. Thereafter, the
Employer and Local 103 filed briefs.
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 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 entire record
in this case and hereby makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a Delaware corporation engaged
in the manufacture and installation of hospital
equipment with its principal place of business in
South Iselin, New Jersey. During the past year, the
Employer sold and shipped products to customers
located outside New Jersey which were valued in
excess of $50,000. Accordingly, we fmd, as the parties
have stipulated, that the Employer is engaged in
commerce within the meaning of the Act and that it
will effectuate the purposes of the Act to assert
jurisdiction herein.
i All dates ' herein are in 1976 unless otherwise indicated.
2 Faulkner Hospital , herein also called the Hospital , did not appear or
participate in this proceeding.
3 These installations were at the Tufts New England Medical Center in
1972-73 and at Waltham Hospital in 1973.
227 NLRB No. 96
H. THE LABOR ORGANIZATION INVOLVED
685
The parties stipulated, and we find, that Local 103
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the installation of
X-ray equipment at Faulkner Hospital2 in Jamica
Plain, Massachusetts.
B. Background and Facts of the Dispute
The Employer installs medical X-ray equipment in
hospitals and other medical facilities throughout the
Massachusetts, Rhode Island, and Connecticut area.
Since 1968 the Employer has completed 270 X-ray
installations in the Boston district, of which 96
percent were performed exclusively by the Employ-
er's employees.'The record reveals that on at least two
occasions in the Boston area the Employer employed
members of Local 103 along with its own employees.3
However, the record reveals that on installations
where employees represented by Local 103 were
employed the Employer closely supervised their
work, using its own supervisors for this purpose, and
the work performed by such employees was limited to
the assembly of the X-ray equipment.
In each installation employees are required to (1)
assemble, bolt, and secure X-ray equipment in place;
(2) install and pull Siemens wires and cables from the
M-314 to various components; (3) wire all individual
components including the M-31; and (4) calibrate
the various components.
Pursuant to a contract between the Employer and
Faulkner Hospital, the Employer agreed to install
five rooms of medical X-ray equipment at the
Hospital. The purchase price covered the full installa-
tion, including the work in dispute. In late January,
prior to the date the Employer was scheduled to begin
installing the equipment, Edward McManus, an
assistant business agent for Local 103, contacted the
Employer's sales engineer , Frank Gallagher, and
claimed all the installation work at the Hospital.
Gallagher responded that the Employer intended to
utilize its ownemployees for the work.
On February 15, representatives of Local 103, the
Hospital, and the Employer met to discuss the
Union's demand for the X-ray installation work. At
this meeting, according to Gallagher's testimony,
McManus restated the Union's position, demanding
4 "M-31" is the Employer 's designation for a box into which the power
source is brought. It is peripheral to the generator and is utilized solely for
purposes of appearance.
686 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
the work in dispute. Gallagher indicated that the
Employer would utilize its own employees and that
the Employer would wait to begin the installation
until the Hospital "accepted" the X-ray wing from
the general contractor, thereby removing the installa-
tion work from the general contractor's control and
thus from the jurisdiction of the Union, McManus
then replied that if the union members were not
assigned the work in dispute he would "shut the
building down."
Thereafter, according - to the testimony of Karl
Haugen, director of general support services and new
construction for the Hospital, the Hospital offered
additional work to the Union. This offer was made in
the hope that if the Union was compensated for any
work' lost by the assignment of the X-ray installation
work to the Employer's employees a shutdown of the
project, and the consequent work delays, could be
avoided. On April 27, McManus, in a letter to the
Hospital and to the Employer, notified both parties
that Local 103 intended to picket the hospital
construction site on May 10, because of the labor
dispute between the Union and the Employer. As a
result of this letter, John J. Delaney, attorney for the
Hospital, notified the Union that a separate gate was
being established for the use of the Employer's
employees. Also on May 7, the Employer filed the
instant unfair labor practice charge.
Work was completed by the Employer's employees
on May 22 - on three of the X-ray rooms. - The
remainder of the work was being performed, as of the
dates of the hearing, exclusively by the Employer's
employees.' No picketing of the ' Hospital by the
Union has occurred.
C. Contentions of the Parties
Local 103 contends that no reasonable cause exists
to believe that a violation of Section 8(b)(4)(D) of the
Act has occurred . On the merits , Local 103 contends
that the work in dispute should be assigned to
employees represented by it on the grounds that (1)
the Employer and his employees have failed to meet
the licensing requirements as set forth in Massachu-
setts General Laws , chapter 141, section 1;5 (2) the
Employer failed to comply with the- permit require-
ments of Massachusetts general laws, chapter 143,
section 3L; 6 (3) the Employer -previously- used
5 Massachusetts general laws , ch. 141, sec. 1, states in pertinent part: "No
person, firm, or corporation shall enter into, engage in or work at the
business of installing wires, conduits, apparatus, fixtures or other appliance
for carrying or using electricity for light, heat or power purposes, unless such
persons, firm or corporation shall have received a license and a certificate
therefor, issued by State Examiners of Electricians and in accordance with
the provisions hereinafter set forth.. : "
6 Ch. 143, sec . 3L, states that "No person shall install for lure any
electrical wiring or fixtures subject to this section without first or within five
days after commencing the work giving notice to the inspector of wires
appointed pursuant to the provisions of section thirty-two of Chapter 166.
members of a sister local in the installation of X-ray
equipment and experienced no difficulty in this
arrangement; (4) the Employer has failed to show
how the award of the disputed work to its employees
would result in any reduced cost or increased
efficiency; (5) although there is no collective-bargain-
ing agreement between the Employer and Local 103,
the letter of assent executed by the Employer and
another IBEW local concerning the installation of X-
ray equipment evidences an intention by the Employ-
er to award the work in dispute to union members;
and (6) an award of the work in dispute to the
Employer's employees would cause further unem-
ployment among union members.?
The Employer contends that there is reasonable
cause to believe that Local 103 violated Section
8(b)(4)(D) of the Act by threatening to picket in order
to force the assignment of the work in dispute to its
members rather than to the Employer's own unrepre-
sented employees. On the merits, the Employer
argues that the disputed work should be awarded to
its employees on the grounds that (1) the Employer's
practice has been to assign,-this type of work to its
own employees; (2) industry practice is to assign such
work to the employees of the X-ray equipment
manufacturer; (3) the Employer's employees are
specially trained to handle its equipment; (4) installa-
tion by its own employees aids the later servicing of
the equipment; (5) safety, considerations require an
-award of the disputed work to its employees; (6) the
Hospital prefers that the Employer's employees
perform the work in dispute; and (7) it is the general
practice of the Employer to include the cost of
installation in its bid for a job and the projected cost
would be greatly increased if union members were
awarded the disputed work. Also, the Employer
argues that Massachusetts law does not prohibit the
use of its employees in the installation of X-ray
equipment, and, in any event, the state statutes
quoted above are irrelevant to a determination of the
instant dispute. -
Finally, the Employer argues that in the event the
Board awards the work in dispute to its employees the
scope of the award should encompass the geographi-
cal area where the jurisdiction of Local 103 and the
Employer's Boston district coincide, on grounds that
Any person failing to give such notice shall be punished by a fine not
exceeding twenty dollars This section shall be enforced by the inspector of
wires within his jurisdiction and the state examiners of electricians."
7 Local 103 also contends that the Hearing Officer erroneously excluded
evidence of industry practice ; i.e., that union electricians installed other
manufacturers' X-ray equipment at three hospitals in the Boston area. We
find no error in the Hearing Officer's rejection of the proffered exhibits on
grounds that the area surveys comprising this evidence were not based upon
the personal knowledge of the witness through whom the evidence was
offered
LOCAL 103, ELECTRICAL WORKERS 687
similar disputes have previously arisen between these
parties.
D. Applicability of the Statute
Before the Board may proceed to a 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) of the Act has been
violated, and (2) the parties have not agreed upon a
method for the voluntary adjustment of the dispute.
As to (1) above, Local 103 contends that it made no
unlawful threat to the Employer or Faulkner Hospital
because the threatened picketing was,for informa-
tional purposes only and in any event no picketing
occurred. The record establishes that on February 15,
McManus, assistant business agent for the Union,
told the Hospital's and the Employer's representa-
tives that if the Union was not allowed to perform the
disputed work-they would "shut the building down."
It is clear from- this statement that the threat was
directed nt the Hospital, and that our object thereof
was to force reassignment of the work in dispute to
employees represented by the Union. Accordingly,
we conclude that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) of the Act has
occurred.
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, includ-
ing the following:
1. Certification and collective-bargaining
agreements
There is no evidence in the record that any labor
organization has been certified by the Board as the
exclusive representative of the Employer's employees.
The record does -establish, however, that there is no
collective-bargaining agreement between the Em-
ployer -and the Union. Accordingly, we give no
weight'to these factors in our determination of the
dispute.
2. Employer's past practice
The Employer, since opening its Boston district in
1968, has utilized its own employees to install X-ray
equipment with only a few-minor exceptions. The
evidence clearly establishes that in the Boston area
the Employer's practice has been to use its own
employees almost exclusively, and in the few installa-
tions where employees represented by Local 103 were
employed their duties were limited to the assembly of
the X-ray equipment under the close supervision of
Siemens' supervisors. There is no evidence that
employees represented by the Union have ever
performed for Siemens all of the job functions
encompassed in. the work now in dispute. According-
ly, we conclude that the Employer's past practice
favors an assignment of the work in dispute to its own
unrepresented employees.
3. Industry and area practice
The record reveals that there are at least three other
X-ray companies operating in the Boston district. It
further indicates that employees represented by the
Union were employed in six non-Siemens installa-
tions, or less than 4 percent of the total number of X-
ray installations performed by other manufacturers,
since 1965. Additionally,, it appears from the record
that most X-ray equipment manufacturers utilize
their own employees to install the equipment. On the
basis of the above findings, we conclude that the
industry and area practice of other companies in the
Boston area,.while not determinative, favors award-
ing the work in dispute to the employees of the
Employer.
4. - Skills, safety, efficiency, and economy
The record discloses that both groups of techni-
cians, i.e., those employedby the Employer and those
represented by Local 103, receive training in the
installation - of X-ray equipment. However, it is
undisputed that employees of the Employer receive
specialized training in the German notation system
and the metric system, and that these employees use
special metric tools to enable them to properly handle
siemens' cables. In addition, the Employer makes a
special effort to ' monitor the amount of X-ray
exposure received by its employees as a part of its
overall safety program, while the Union has no such
monitoring procedure.8 Further, the evidence establ-
ishes that each Siemens technician has had, in
addition to special training, a minimum of 2 years'
field experience, as contrasted with the more general-
ized training employees represented by, the Union
receive. Finally, as a group,, employees working for
the Employer appear to be more qualified by their
skills and experience to perform the work in dispute
than those represented by Local 103. We therefore
conclude that this factor award of the work in dispute
to the Employer's employees.
8 The Employer does not use this monitoring procedure for nonregular
employees because of the difficulty of keeping adequate records as to them.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Effect on employment
The Union contends that an award of the disputed
work to the Employer's employees would have a
detrimental effect on employment of employees
represented by it inasmuch as nearly 40 percent of its
membership was unemployed at the time of the
hearing. The Employer, however, asserts that if the
work were assigned to Local 103 members Siemens
would have to lay off its own employees. The record
indicates that there are approximately 2,300 union
members and that the Employer's Boston medical
systems division employs only 14 X-ray technicians.
It is apparent that an assignment of the work in
dispute to the individuals currently working for the
Employer will have no substantial impact upon the
job opportunities available to individuals represented
by Local 103, while a contrary award would have a
disproportionate effect on the employment of the
Employer's employees. Thus, this factor favors an
award to the employees of the Employer.9
6. Licensing requirements
As noted previously, Local 103 argues that the
Employer failed to comply with Massachusetts gener-
al laws, chapter 141, in using unlicensed employees
and failing to be licensed itself. Local 103 further
contends that the Employer has failed to comply with
the permit requirements of chapter 143. It is uncon-
troverted that neither the Employer nor its employees
were issued licenses for the performance of the work
in dispute.
With respect to the Employer's failure to comply
with the licensing requirement set forth in chapter
141, we find that this requirement relates solely to .the
Employer's qualification to do the work and not to
the assignment of the work to a particular group of
employees. In Local Union No. 134, IBEW, supra, the
Board found that licensing requirements are irrele-
vant where they concern only the employer's qualifi-
cation to perform the disputed work and not the
assignment of such work to employees. Accordingly,
we find the instant'alleged licensing requirement as it
applies to Siemens to have the same purpose as that
in Local Union No. 134, and deem it irrelevant to our
determination of this dispute.
The record reveals that the applicability of chapter
141 to the qualifications of the Employer's employees
to do the work in dispute remains unsettled. The state
board examiners and electricians investigator, Antho-
ny Agresti, testified that "there has not been any
ruling by a court that Chapter 141 specifically applies
to installers of X-ray equipment." Further, although
there have been attempts to amend chapter 141 so as
to specifically include X-ray installers, the statute has
never been so changed. Indeed, it appears that the
Massachusetts legislature intended that the licensing
requirements not apply to X-ray installation as is
indicated by the following statement in a letter by
State Representative Robert B. Ambler, chairman of
the Massachusetts Committee on Government Regu-
lations:
According to our research we found that in many
aspects of this legislation electricians would be
given complete jurisdiction over technical areas in
which they have had relatively little knowledge.
Your point regarding X-ray field service engineers
and servicemen was a typical example. Therefore,
the committee concluded that no legislation was
necessary.
Additionally, we note that a court proceeding involv-
ing the applicability of chapter 141 to X-ray installers
is pending between the state board and-another X-ray
equipment manufacturer. As of the date of the
hearing herein, no decision had been reached. Since
there has been no definitive interpretation of the
chapter 141 licensing requirements by the state courts
with respect to X-ray installers, we find their statute
to be of no assistance in our consideration of the
merits of this dispute.
Finally, with respect to the requirements of chapter
143, Agresti testified that "Chapter 143 is a permit
law. In other words, it is to give -notice to the
Inspector ...." Thus, we find that this state law
attempts to regulate the activities of the Employer
and does not bear on the qualifications of the
competing employee groups to perform the disputed
work. Accordingly, chapter 143, like the alleged
licensing requirements of chapter 141 for Siemens
itself, is irrelevant to a determination of this dispute.
7. Employer preference
The record clearly establishes that the Employer
would prefer to assign the disputed work to its own
unrepresented employees. This factor also tends to
favor an award of the work to employees of the
Employer.
Conclusion
Based upon the entire record, and after full
consideration of all relevant factors, we conclude that
the employees of the Employer are entitled to
perform the work in dispute. We reach this conclu-
sion based on the Employer's past practice, industry
9 Local Union No. 134, International Brotherhood of Electrical Workers,
AFL-CIO (International Telephone & Telegraph Corporation, Communications
Equipment and Systems Division), 191 NLRB 828 (1971).
LOCAL 103, ELECTRICAL WORKERS 689
and area practice, considerations of skill, safety,
efficiency, and economy, effect on employment, and
the Employer's preference. Accordingly, we shall
determine the dispute before us by awarding the work
in dispute to those employees presently employed by
the Employer as X-ray technicians.
The Employer, in its brief, requests that the Board
determine the dispute by awarding the disputed work
to its own employees and further requests that the
Board's determination apply to the geographic juris-
diction of Local 103.
In the past, it has been the Board's policy to make
an award broad enough to encompass the geographic
area in which an employer does business, wherever
jurisdiction of the competing groups of employees
coincide, in circumstances where there is an indica-
tion that the dispute is likely to recur.'0 As the record
fails to establish such a likelihood with respect to the
instant dispute, we find that a broad remedial order is
not appropriate in this case. Therefore, our determi-
nation in this case is limited to the present dispute.
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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
1. Employees of Siemens Corporation are entitled
to perform the installation of X-ray equipment at
Faulkner Hospital, Jamaica Plain, Massachusetts.
2. Local 103, International Brotherhood of Elec-
trical Workers (IBEW), 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.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 103, Interna-
tional Brotherhood of Electrical Workers (IBEW),
shall notify the Regional Director for Region 1
whether or not it will refrain from forcing or requiring
the Employer, by means proscribed by Section
8(b)(4)(D) of the Act, to assign the work in dispute to
its members rather than to employees of the Employ-
er.
10 International Brotherhood of Electrical Workers, Local No. 26, AFL-
CIO (Taylor Woodrow Blitman Construction Corporation), 195 NLRB 261
(1972).