IBEW, Local 104 Standard Sign

National Labor Relations Board - Board Decisions

Apr 16, 1980

248 N.L.R.B. 1144 (N.L.R.B. 1980)

1144 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
AFL-CIO, Local 104 and Standard Sign &
Signal Co., Inc.; The Henley-Lundgren Compa-
ny; Labor Relations Division of Construction
Industries of Massachusetts and Teamsters
Local Union No. 170, a/w International Broth-
erhood Of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 1-CD-590
April 16, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by the Standard Sign & Signal
Co., Inc.; The Henley-Lundgren Company; and
Labor Relations Division of Construction Indus-
tries of Masschusetts (herein called CIM), alleging
that International Brotherhood of Electrical Work-
ers, AFL-CIO, Local 104, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activities with an object of forcing or re-
quiring Standard to assign certain work to its mem-
bers rather than to employees represented by
Teamsters Local Union No. 170, a/wInternational
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called Inter-
venor or Local 170.
Pursuant to notice, a hearing was held before
Hearing Officer Francis X. McDonough on Janu-
ary 3, 1980. All parties appeared at the hearing and
were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, Local
170 filed a brief, and the Charging Parties filed a
brief.
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 Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
Standard is a Massachusetts corporation engaged
in the erection of temporary and permanent signs
The Charging Parties have requested oral argument on the issue of
the appropriateness of a broad, areawide awkard. This request is hereby
denied as the record, the exceptions. and the briefs adequatel) prevent the
issues and the positions of the parties.
248 NLRB No. 134
and traffic lights. It annually purchases goods and
materials valued in excess of $50,000 from points
outside the Commonwealth of Massachusetts.
The parties stipulated, and 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
effectuate the purposes of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we so find, that Local
170 and Local 104 are labor organizations within
the meaning of Section 2(5) of the Act.
111. DISPUTE
A. Background and Facts of the Dispute
The situs of the dispute is a highway project lo-
cated in Natick, Massachusetts, and within the ter-
ritorial jurisdiction of Local 170. Henley is a signa-
tory to the statewide heavy and highway construc-
tion agreement with the Teamsters, including
Local 170, and is currently engaged in a project in-
volving the construction of an intersection under-
pass on Route 9. Part of the construction on this
project involves work related to the installation
and construction of electrical traffic signals, both
temporary and permanent, and the installation and
construction of highway lighting systems. Consis-
tent with the practice of general contractors in the
Massachusetts area, Henley subcontracted this
work to Standard, a specialty contractor perform-
ing work of this nature on highway construction
projects. 2
According to Paul Cherubini, Standard's vice
president of operations, at the commencement of a
job Standard sends a foreman and an electrician to
the project site to review blueprints, contract speci-
fications, and other contract documents in order to
survey the physical jobsite. Pickup or service
trucks are used to transport these employees to and
from the jobsite. While the survey work is being
performed, the trucks remain parked on the jobsite.
After the survey has been completed, Standard's
electrical construction crew,3 along with their
tools and equipment, are transported to the site in
pickup trucks to perform the excavation, trenching,
installation of concrete manholes, setting of rebar
concrete reinforcing, and the installation and erec-
tion of temporary and permanent traffic signal and
highway lights. Once the electrical construction
2 The Department of Public Works for the Commonwealth of Massa-
chusetts, the authority awarding the Natick project, permits the subcon-
tracting of a limited number of specialty items, two of which are the in-
stallation of traffic signal and control items, and highway lighting sys-
tems.
a This crew consists of members of Local 104.
IBEW, LOCAL 104 (STANDARD SIGN) 1145
crew is on the jobsite, the trucks remain parked
unless it is necessary to move the crew a few hun-
dred feet to another location on the site. 4 The driv-
ing is performed by a member of the crew, usually
the crewmember with the designation of driver-
groundman. Once the truck is parked, the driver
then resumes his work with the rest of the crew.
In November or December 1978, during the
course of the above-described construction work,
Local 170 protested to Henley that Standard was
operating pickup trucks without Teamsters drivers.
When this matter was not resolved between Local
170 and Henley, Local 170 submitted the dispute to
arbitration pursuant to its collective-bargaining
agreement with Henley. At the arbitration hearing,
the arbitrator focused solely on Henley's alleged
breach of the Teamsters agreement by contracting
with a subcontractor not using Teamsters drivers.
Although Local 104 attempted to intervene, the ar-
bitrator barred it from participating in the proceed-
ing. 5 On October 20, 1979, the arbitrator issued his
decision finding that Henley violated its contract
with Local 170 by failing to use Teamsters drivers
in the operation of its pickup trucks and service
trucks.
The day after the arbitration award issued, Stan-
dard's president, Jack Gannon, advised Local 104's
business agent, Robert Ward, that as a result of the
arbitration award he was considering reassigning
the operation of the pickup trucks to the Team-
sters. Ward responded that if Standard assigned the
truckdriving work to the Teamsters the members
of Local 104 would strike.
B. The Work in Dispute
The parties are in agreement that the work in
dispute involves the operation of Standard's pickup
trucks and service trucks used to transport the
electrical construction crew and their tools to and
from the Natick jobsite and from locations within
that site.
C. Contentions of the Parties
The Charging Parties contend that a jurisdiction-
al dispute exists and that there is reasonable cause
to believe that Section 8(b)(4)(D) has been violat-
ed. On the merits, the Charging Parties contend
that the present assignment of the disputed work to
employees represented by Local 104 should contin-
ue and that such assignment is warranted by the
factors of uniform area practice, applicable collec-
tive-bargaining agreement, economy, efficiency of
operations, skills, safety, and job impact. In this
connection, the Charging Parties argue that the ar-
4 The Natick construction site is approximately one-half mile in length
5 Standard was not a party to the arbitration proceeding
bitration award covered work not clearly within
the bargaining unit governed by the Teamsters
agreement. Finally, the Charging Parties contend
that a broad award, coextensive with Local 170's
jurisdiction, is warranted in view of the previous
Board determinations under Section 10(k) against
Local 1706 involving work similar to that here,
and as Local 170 continues to claim the disputed
work on this and other projects within its jurisdic-
tion.
Local 170 contends that the record evidence
does not support the Charging Parties' claim that
Standard has a current collective-bargaining agree-
ment with Local 104 covering the work in dispute.
Local 170 notes that the contract in the record is
between Local 104 and Lancaster Engineering Co.,
Inc., and not Standard. In the absence of a current
contract between Local 104 and Standard award-
ing the disputed work to employees represented by
Local 104, Local 170 argues that the Board should
award the disputed work to employees represented
by it, since it has a current contract covering that
work and as that work has been historically and
continually performed by employees represented
by Teamsters.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied that Section 8(b)(4)(D) has
been violated and that the parties have not agreed
upon a method for voluntary adjustment of the dis-
pute.
The record establishes that on October 21, 1979,
Local 104 threatened to strike the Natick project if
the Employer complied with the arbitrator's award
by reassigning the disputed work to the Teamsters.
In these circumstances, we find that there is rea-
sonable cause to believe that Section 8(b)(4)(D) of
the Act has been violated.
We further find that there is no agreed-upon
method for the voluntary adjustment of the dispute
to which all parties are bound. The only record
evidence remotely suggesting the existence of an
agreed-upon method for voluntary adjustment of
this dispute was the arbitration proceeding involv-
ing Henley and Local 170. However, since neither
Standard nor Local 104 was a party to that pro-
ceeding, there is no agreed-upon method for the
I See Teamsters Local Union No. 170. affiliated with the International
Brotherhod of Teamsters Chauffeurs, Warehousemen and Helpers of 4mer-
ica (The Henlev-Lundgren Co.), 240 NLRB No 91 (1979); Truck Drivers
& Helpers Local No. 170. a/w International Brotherhood of Teamsters.
Chauffeurs. Warehousemen and Helpers of America (Delucca Fence Co..
Inc), 240 NLRB No 85 (1979): Truck Drivers Union Local 170. affiliated
iwth International Brotherhonod of Teamsters. Chauffeurs, Warehousemen
and Helpers of America (4ssociated General Contractors). 216 NLRB 236
(1975)
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resolution of this dispute binding upon all the par-
ties to the dispute. 7 Accordingly, the dispute as de-
scribed above is properly before the Board for de-
termination under Section 10(k) of the Act.
E. The 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 factors.8 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing the
factors involved in a particular case.? The follow-
ing factors are relevant in making the determina-
tion of the dispute before us:
1. Collective-bargaining contracts
At the hearing, the Charging Parties offered into
the record an agreement purportedly executed be-
tween Local 104 and Standard covering the disput-
ed work. That contract, as noted above, was ex-
ecuted on behalf of Lancaster Engineering Co.,
Inc., not Standard; and there is no reference to
Standard in that contract. We therefore find that
no contract currently favors assignment of the
work in issue to employees represented by Local
104.
Article 2, section 4, of the 1979-81 Teamsters
contract states:
Pickup trucks, station wagons and panel trucks
shall be operated by Teamsters when being
used to haul materials, equipment and parts to,
from or on a jobsite or jobsites. Excluded from
these categories shall be pickup trucks, station
wagons and panel trucks operated by supervi-
sory personnel, maintenance mechanics, and
pickup trucks, station wagons and panel trucks
used occasionally for errands and emergencies.
The collective use of pickup trucks, station
wagons and panel trucks as a substitute for a
flat rack or service truck that would be used
for hauling materials, equipment and parts
shall be a violation of this Agreement. The
within exceptions shall not be used to circum-
vent the intent of this provision.
Although this agreement arguably covers the oper-
ation of the pickup trucks and service trucks
' See N.L.R.B. v Plasterers Local Union No. 79 Operative Plasterers'
and Cement Masons' International Association, AFL-CIO [Texas State Tile
& Terrazzo Co.], 404 U.S. 116 (1971), and Local Union No. 12 of the
United Association of Plumbers and Gas Fitters (J. F White Contracting
Co., Heavy Construction Division), 215 NLRB 363, 365 (1974).
e N.L.R.B v. Radio d Television Broadcast Engineers Union, Local 1212.
International Brotherhood of Electrical Workers AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
I International Association of Machinists Lodge No. 1743, AFL-CIO (J
A. Jones Construction Company). 135 NLRB 1402 (1962).
claimed by Local 170 in this case, the above agree-
ment is with Henley, not Standard, and therefore
does not directly cover work performed by em-
ployees of Standard.
It is apparent from the foregoing that neither
Union has a legitimate contractual claim to the
work in dispute, and that the factor of collective-
bargaining contracts does not favor an assignment
to employees represented by either Local 170 or
Local 104.
2. Arbitration award
As indicated above, Local 170 filed a grievance
against Henley concerning its claim to the disputed
work. As a result of the arbitration proceeding,
Henley was found to have breached its contract by
subcontracting to an employer not using Teamsters
drivers in the operation of its pickup trucks and
service trucks. Standard and Local 104, however,
did not participate in the arbitration proceeding
nor did they agree to be bound by the decision of
the arbitrator. Furthermore, the arbitrator-in
reaching his decision-focused solely on the lan-
guage of the subject contract and refused to con-
sider any of the factors that the Board might con-
sider relevant were it called upon to resolve the
work dispute. Accordingly, we decline to give
controlling weight to that award.' 0
3. Employer and area practice
Gil Berkley, the superintendent for Henley on
the Natick project, testified that Henley customar-
ily does not install signs, sign supports, traffic
signal systems, and highway and bridge lighting,
but subcontracts that work to specialty subcontrac-
tors such as Standard. Berkley further testified that
the subcontracting out of such work is consistent
with the practice of other general contractors in
the Massachusetts area. Paul Cherubini, the vice
president of operations for Standard, and Jim
Young, Standard's foreman and a member of Local
104, similarly testified that it was area practice for
general contractors to subcontract such work to
specialty subcontractors.
Following up on their testimony concerning area
practice, Cherubini and Young testified that the
task of driving the pickup trucks and service trucks
was and has been assigned to members of the
IBEW. Robert Ward, the business manager of
Local 104, and Paul Longhran, the IBEW Interna-
tional representative, testified that it was area prac-
tice for specialty subcontractors, like Standard, to
have the driving of pickup trucks and service
trucks performed by members of the IBEW. The
LO International Die Sinkers' Conference and Detroit Die Sinkers' Lodge
No. 110 (General Motors Corporation), 197 NLRB 1250, 1253 (1972).
IBEW, LOCAL 104 (STANDARD SIGN) 1147
Charging Parties noted that, in previous 10(k) pro-
ceedings involving Local 170 and work similar to
that in dispute here, the Board did not award the
truckdriving to employees represented by the
Teamsters because the driving function was inci-
dental to the work of the construction employees
represented by the Laborers Union. ''
From the foregoing, it is clear that the factor of
employer and area practice favors the assignment
of the disputed work to employees represented by
Local 104.
4. Economy, efficiency of operation, and job
impact
As noted, the pickup or service truck is driven
by a member of Standard's electrical construction
crew. 12 The operation of the truck occupies only a
small portion of the driver's time, since the truck is
only used to transport the crew and tools to and
from the jobsite and, on limited occasions, from
different locations on the site. For most of the day,
the truck remains parked and the driver-crew-
member performs electrical installation work along
with the rest of the crew. Thus, no employee is
hired to perform exclusively the task of driving
Standard's pickup or service trucks. Because the
electrical installation work requires skills not pos-
sessed by employees represented by Local 170, the
hiring of employees represented by Local 170
would result in those employees being idle during
the long periods the trucks are not in use. In addi-
tion, Young, Standard's foreman, testified that the
assignment of the disputed work to employees rep-
resented by Local 170 would result in the layoff of
a skilled member of the crew, thereby reducing the
efficiency and effectiveness of the work crew.
It is evident from the above that the hiring of an
employee represented by Local 170 to perform ex-
clusively the truckdriving function would result in
the addition of an essentially unproductive employ-
ee, the layoff of a skilled, productive member of
the electrical construction crew, and the general
impairment of the efficiency of Standard's overall
operations. In previous decisions involving this
Union and work similar to that in dispute herein,
we have recognized that assigning such work to
employees represented by Local 170 would impede
" See fn. 6, supra.
2 According to the record, the trucks are sometimes driven by the
foreman heading the construction crew. To the extent that these trucks
are operated by the Employer's supervisory employees within the mean-
ing of Sec. 2(11) of the Act, that operation may not be made the subject
of a work assignment dispute See Building Material Dump Truck Driv-
ers Local 420. International Brotherhood of Teamsters. Chauffeurs. Ware-
housemen and Helpers of America (All American Asphaltr. Inc.), 238 NLRB
No. 132, sl. op., p. 4 (1978), and Local 236, affiliated with the International
Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of Amer-
ica (Maxon Construction Company), 194 NLRB 594 (1971).
the efficiency and effectiveness of the employer's
operations as well as being uneconomical. ' In
light of those decisions, considered in the context
of the evidence detailed above, we find that the
factors of economy, job impact, and efficiency
favor assignment of the disputed work to employ-
ees represented by Local 104.
5. Employer preference
Standard assigned the work in dispute to, and
prefers that it be performed by, the employees rep-
resented by Local 104. This factor, while not deter-
minative, militates in favor of an award to these
employees.
Conclusion
Upon the entire record in this proceeding and
after full consideration of all the relevant factors,
we conclude that Standard's employees who are
represented by Local 104 are entitled to perform
the work in dispute. We reach this conclusion on
the basis of Standard's established practice of as-
signing the disputed work to employees represent-
ed by the IBEW, area practice, the relative econo-
my and efficiency of operations, job impact, and
Standard's preference. Accordingly, we shall deter-
mine the dispute by awarding the work in issue to
Standard's employees represented by Local 104. In
making this determination, we are awarding the
work in question to employees who are represented
by Local 104, but not to that Union or its mem-
bers.
Scope of the Award
The Charging Parties requested that the work
award encompass the performance of all work of
this nature within the geographic jurisdiction of
Local 170. Drawing our attention to the previous
Board determinations under Section 10(k) against
Local 170,14 the Charging Parties contend that a
broad, areawide award is necessary to counteract
the likelihood that Local 170 will continue to use
proscribed means to acquire the work in dispute.'
's See Teamsters Local Union Na 170 (The Henley-Lundgren Co.)J
supra Truck Drivers Helpers Local No. 170 (Delucca Fence Co.), supra.
" See fn. 6, supra.
'" In their brief, the Charging Parties note that Local 170 has filed a
number of grievances against another general contractor, Barletta Com-
pany, concerning Barletta's subcontracting to Standard and Standard's
failure to use employees represented by Teamsters in the operation of its
trucks. The Charging Parties further note that an 8(b)(4D) charge has
been lodged against Local 170 concerning that disputed work and that
the case is currently pending before the Board. Subsequent to the filing
of the Charging Parties' brief here, we have issued a decision in that case
(Truck Drtvers and Helpers Union Local No. 170 affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (The Barlerta Company), 248 NLRB No 114 (1980)), finding
that the disputed work should be assigned to employees represented by
Continued
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such an award, they point out, has been recently
provided by the Board against Local 170 in Truck
Drivers & Helpers Local No. 170 (Delucca Fence
Co.). 16
There are two prerequisites for a broad,
areawide award: (1) there must be evidence that
the work in dispute has been a continuous source
of controversy in the relevant geographic area and
that similar disputes may recur;1 7 (2) there must be
evidence demonstrating a proclivity on the part of
the charged union to engage in further unlawful
conduct in order to obtain work similar to that in
dispute. 18
These requirements are not considered indepen-
dently. Rather, it is the appearance and intertwin-
ing of the two that evokes, if at all, 9 the imposi-
tion of a broad award. The necessity for the broad
award must be clearly demonstrated since a 10(k)
award is ordinarily limited in scope to the particu-
lar jobsite or jobsites where the proscribed
8(b)(4)(D) conduct has occurred. Once the necessi-
ty for the broad award is shown, the award is nor-
mally coextensive with the geographic jurisdiction
of the offending union,20 unless cause is shown
why the order should be broadened or modified.
Turning to the facts in this case and applying the
foregoing principles, we are unable to conclude
that a broad order is indispensable to the fashioning
of a meaningful award here. While Local 170 has
been found in earlier 10(k) proceedings to have
the Laborers Union. In that case, we declined to issue a broad areawide
award.
' 240 NLRB No. 85 (1979). amended by Decision and Determination
of Dispute not reported in the Board's volumes, Case -CD 548 (June 5,
1979).
17 See Iron Workers Local No. 563, International Association of Bridge.
Structural and Ornamental Iron Workers. AFL-CIO (Spancrete Midwest
Company). 183 NLRB 1105, 1108 (1970); Local 1184, affiliated with Labor-
ers International Union of North America (Massey Sand and Rock Co.), 198
NLRB 77, 79 (1972).
I8 See Local No. 3 International Association of Bridge, Structural and
Ornamental Iron Workers. Local Union No. 3 (Spancrete Northeast Inc.),
243 NLRB No. 81 (1979).
19 In a given case, one or more factors may, when viewed in an over-
all context, militate against the imposition of a broad award. See, e.g.,
Iron Workers. Local No. 3 International Association of Bridge, Structural
and Ornamental Iron Workers, Local Union No. 3 (Spancrete Northeast.
Inc.), supra; Local 361. International Association of Bridge, Structural and
Ornamental Iron Workers AFL-CIO (Concrete Casting Corp.), 209 NLRB
112, 116 (1974).
2a See, e.g., Local 361, Ironworkers (Concrete Casting Co.), supra (area
coextensive with jurisdiction of charged union).
violated the Act by conduct prohibited by Section
8(b)(4)(D), there is no evidence in this case, nor is
any alleged, indicating that Local 170 has engaged
in or is engaging in proscribed conduct in order to
obtain the disputed work on the Natick project.
Indeed, Local 170 has sought through lawful
means, i.e., arbitration, to assert a claim, albeit only
colorable, to the disputed work. When, through
notice of the arbitration award, Standard consid-
ered assigning the disputed work to Local 170, it
was Local 104, not Local 170, that responded with
the threat of strike activity if the work were reas-
signed. It is by virtue of that conduct, not Local
170's, that the present controversy is before us.
Moreover, we are unable to locate in the record
any evidence indicating that Standard will continue
operating within the jurisdiction of Local 170.
In the absence of evidence demonstrating that
the union, against which the broad award will lie,
has resorted to unlawful means to obtain the work
in dispute and that such unlawful conduct will
recur, 21 we will not impose the broad award. Be-
cause Local 170 has not engaged in unlawful con-
duct in this case, we have no basis for assuming
that it will do so in the future. The requirements
therefore for the issuance of the broad award have
not been satisfied. Accordingly, we are constrained
to withhold the issuance of a broad award in favor
of one limited to the particular controversy which
gave rise to this proceeding.
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
makes the following Determination of Dispute:
Employees of Standard Sign & Signal Co., Inc.,
who are represented by International Brotherhood
of Electrical Workers, AFL-CIO, Local 104, are
entitled to perform the operation of pickup trucks
and service trucks involved in the erection and in-
stallation of highway lighting and traffic signals on
an intersection of Route 9 in Natick, Massachusetts.
21 See Local 1184, affiliated with Laborers International Union of North
America (Massey Sand and Rock Co.), 198 NLRB 77, 79 (1972).