Local 702, Electrical Workers

National Labor Relations Board - Board Decisions

Apr 20, 1971

189 N.L.R.B. 929 (N.L.R.B. 1971)

LOCAL 702, ELECTRICAL WORKERS
Local 702, International Brotherhood of Electrical
Workers , AFL-CIO and JRJ Excavating Compa-
ny, Incorporated' and International Union of
Operating Engineers, Local 318, AFL-CIO. Case
14-CD-356
April 20, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by JRJ Excavating Company, Incorpo-
rated, herein called the Employer, under Section
8(b)(4)(D) of the Act. The charge alleges, in sub-
stance, that Local 702, International Brotherhood of
Electrical Workers, AFL-CIO, herein called IBEW,
coerced and restrained the Employer by threatening
to engage in a work stoppage in order to force or
require the Employer to assign particular work to
members of IBEW rather than to members of
International Union of Operating Engineers, Local
318, AFL-CIO, herein called Engineers. A duly
scheduled hearing was held at St. Louis, Missouri, on
December 4, 1970, before Hearing Officer Neil E.
McDarley. All parties appeared at the hearing and
were afforded a full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, briefs were
filed by the Employer' IBEW, and Engineers.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 and hereby makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties have stipulated, and we find, that the
Employer, a Delaware corporation with its principal
office and sole facility located in Centralia , Illinois,
performs excavating services for individuals and
industrial and commercial enterprises, and that
during its fiscal year preceding the hearing, it had
performed services valued in excess of 100,000 for
customers located outside the State of Illinois. The
I The name of this party appears as amended at the hearing
2 A pedestal is a partially underground cable housing
929
parties further stipulated, and we find, that the
Employer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that IBEW and
Engineers are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE DISPUTE
A. The Background Facts
The Employer is engaged in both general excava-
tion work and the installation of underground
telephone cable. The former type of work is not
involved in the instant dispute which concerns the
operation of the equipment utilized in the trenching
and laying of underground telephone feeder cable
from the main cable to residences and commercial
establishments.
At the time of the dispute, the Employer was bound,
through letters of assent, by various agreements
between IBEW and American Line Builders Chapter,
NECA, covering outside construction work on
properties of telephone utilities and other communi-
cation and signal systems. These agreements specifi-
cally included the job classifications required to
perform all of the work involved in laying under-
ground telephone cable. The Employer also was
bound by bargaining agreements with Engineers
covering the operation of various types of equipment
used basically on construction work-highway, street,
and bridge projects; heavy construction, railroad,
flood control, levee, and drainage projects; airport
projects; and building construction. Unlike the
Employer's agreements with IBEW, its agreements
with Engineers provide for the submission of jurisdic-
tional disputes to the National Joint Board for
Settlement of Jurisdictional Disputes, Building and
Construction Industry, for binding decision.
With respect to the instant dispute, the record shows
that in the fall of 1969, the Employer entered into a
contract with the Hardin County Telephone Compa-
ny to install underground telephone feeder cables
running from the main underground cable to residen-
tial and commercial establishments in the city of
Rosiclare, Illinois. The job, known as drop work, was
performed by three employees who were members of
IBEW. It consisted of hand trenching at the pedestal,2
connecting the feeder cable underground, either by
189 NLRB No. 134
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trenching or by vibration, from the pedestal to the
protector,3 hand trenching at the protector, and
connecting the feeder cable to the protector. Trench-
ing was done by a trenching machine where possible,
and by hand where the machine could not be used.
Where the terrain permitted, the cable was vibrated
into the earth by means of a vibrating plow which
either was attached to, or an integral part of, a small
ditch tractor known as an R-60. In this process, the
tractor, similar to a garden tractor, carries the cable
on a reel carrier mounted on its front, the cable is fed
into a tooth of a vibrating plow "in the back of" the
tractor and, as the tractor moves along, the tooth
vibrates the cable 24 inches into the ground with very
little surface disturbance.
In late April 1970, an Engineers business agent
visited the jobsite and, in general terms, told the
electricians working there that the job belonged to
Engineers . Upon learning of this, Lambert, the
Employer's president, visited the Engineers business
manager, Riggs, told Riggs that he, Lambert, had
used and would continue to use electricians for drop
work, but, as was his practice, he would use engineers
for "dirt" (excavation) work-which included the
laying of water and sewer lines. There also was some
discussion of using a composite crew of electncians
and engineers on the job, but Riggs rejected this
suggestion. Riggs, meantime, had written a letter to
the Employer wherein he claimed that the operation
of the machines utilized in drop work belonged to
Engineers by virtue of its bargaining agreements with
the Employer and requested that the work be
reassigned to Engineers members.
Lambert refused to comply with Riggs' request and
subsequently received a letter from the National Joint
Board for Settlement of Jurisdictional Disputes,
Building and Construction Industry, requesting the
Employer to send the Joint Board a full description of
the work involved in the "jurisdictional dispute"
concerning the "operation of ditching machine,
backhoe and end loader." Lambert's letter of re-
sponse stated that "Our agreement with IBEW is for
line construction and this does not come under the
jurisdiction of the National Joint Board, as it only
covers Building & Trade work."
By letter dated June 5, 1970, the Joint Board
informed the Employer that pursuant to a "decision
of record of November 11-23, 1907," it had consid-
ered the dispute and had awarded to Engineers the
work of operating the equipment it considered to be in
dispute.4
3 A protector is a connector from which the telephone line runs into the
user 's establishment
' Although IBEW's International president also received copies of the
Joint Board's decision, there is no evidence that IBEW participated in any
Joint Board proceeding concerning the dispute Moreover, the record
On or about August 25, 1970, Engineers filed a
complaint in the United States District Courts against
the Employer under Section 301 of the Labor
Management Relations Act, as amended, seeking
enforcement of its bargaining agreements with the
Employer. At the time of the hearing, the suit still was
pending. Shortly after September 24, 1970, the
Employer received a letter from IBEW which noted
that Engineers had "filed a lawsuit seeking to force
[the Employer] to assign the work involved in
trenching for and the laying of underground tele-
phone cable," and concluded that "if you reassign the
work as demanded by [Engineers], then [IBEW] will
take any and all means available to it to enforce the
provisions of its contract with [the Employer],
including the cessation of work by the members of
IBEW." The Employer then filed the charges which
instituted this proceeding.
B. The Work in Dispute
The work in dispute concerns the operation of the
trencher and the R-60 tractor used in the laying of
underground telephone feeder cable from the main
telephone cable to residential and commercial estab-
lishments. Engineers specifically disclaim the assign-
ments of hand trenching, actual laying of the cable
whether by hand or by machine, and the making of
electrical connections at the pedestal and the protec-
tor.
C. Contentions of the Parties
The Employer contends that IBEW violated Section
8(b)(4)(D) of the Act by threatening the Employer
with a work stoppage in the event it assigned the work
in dispute to Engineers. The Employer further
contends that the disputed work should be awarded to
members of IBEW on the basis of its assignment of
the work to its electricians , its bargaining agreements
with IBEW, its past practice, industry practice, and
considerations of skill, efficiency, flexibility, and
economy. The Employer also contends that it is not
bound by the Joint Board's decision.
IBEW also contends that it is not bound by the
Joint Board's decision and urges the Board to assign
the disputed work to its members for substantially the
reasons as set forth by the Employer.
Engineers contends that the assignment of the work
in dispute has been resolved in its favor by the dicision
of the Joint Board which the Employer is bound to
observe by virtue of its bargaining agreements with
indicates that, as a matter of policy, IBEW does not participate in Joint
Board proceedings with respect to outside construction work
Local 318, International Union of Operating Engineers v JRI
Excavating Company, Incorporated, U S D C , Eastern District of Illinois,
No 70-115
LOCAL 702, ELECTRICAL WORKERS
Engineers, and which IBEW also must obey because
of the absence of evidence indicating that it did not
participate in the matter before the Joint Board, and
because its constituent affiliation with the AFL-CIO
requires it to observe the AFL-CIO constitution
which "contains no limitations upon the affiliated
labor organizations in their submissions of jurisdic-
tional disputes to the Joint Board." Engineers further
contends that only the unions involved in the dispute
need agree to voluntary adjustment of the dispute,
and, therefore, it is immaterial whether the Employer
participated in the Joint Board proceeding. Based
thereon, Engineers argues that inasmuch as all, or the
necessary, parties have agreed upon a method for the
voluntary adjustment of the work assignment dispute
within the meaning of Section 10(k) of the Act, the
Board should honor its motion first made at the
hearing and renewed in its brief to quash the notice of
hearing.
Alternatively, Engineers contends that the disputed
work should be assigned to its members on the basis
of area practice within its territorial jurisdiction, and
because it had available applicants for employment
who were qualified to operate the equipment in issue.
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 there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated.
As previously set forth, after the Employer had
rejected Engineers demand to reassign the disputed
work to its members, and following the Employer's
refusal to comply with the decision of the Joint Board
to do likewise, Engineers instituted an action against
the Employer in Federal district court. Shortly after
becoming aware of the pending lawsuit, IBEW
notified the Employer that if it reassigned the work to
Engineers members, then IBEW members would
engage in a strike and other undisclosed action to
protest such reassignment. This threat satisfies us that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred.
As to Engineers arguments buttressing its motion to
quash, we have consistently held in our 10(k)
determinations that the employer controlling the
work assignment as well as the rival unions involved
comprise the "parties to such dispute," and that all of
the parties must approve and enter into a voluntary
6 L & K Contracting Company, Inc, 186 NLRB No 152, Siciliano
Brothers, Inc, 186 NLRB No 115, Lathers Union Local 104, The Wood,
Wire and Metal Lathers International Union , AFL-CIO 186 NLRB No 70,
Plasterers Local Union No 79 (Southwestern Construction Company), 172
NLRB No 77, enforcement denied 440 F 2d 174 (C A D C)
7 International Association of Machinists, Lodge No 1743, AFL-CIO (J
931
adjustment procedure in order to preclude a hearing
and determination pursuant to that sections There-
fore, since the record affirmatively shows that IBEW
is not bound to the Joint Board with respect to the
type of work in controversy, and neither submitted
this dispute nor otherwise participated in the Joint
Board proceeding, we find that there was no agree-
ment for a voluntary adjustment of the dispute within
the meaning of Section 10(k), and that the Board is
not precluded from making its determination in this
proceeding. Accordingly, we hereby deny Engineers
motion to quash this proceeding.
E. Merits of the Dispute
We shall, in conformity with the J. A. Jones case? and
pursuant to the Supreme Court's C.B.S. decision,8
determine in this case presented for resolution under
Section 10(k) of the Act the appropriate assignment of
the disputed work after taking into account and
balancing all relevant factors.
1. Collective-bargaining agreements
As previously indicated, the Employer and IBEW
are parties to bargaining agreements "Covering
Outside Construction Work on Properties of Tele-
phone Utilities"9 which included job classifications
covering all of the work involved in laying under-
ground telephone cable. The Employer's contracts
with Engineers also may cover the operation of the
type of equipment used to lay such cable. Those
contracts, however, pertain to general construction
work and do not specifically include telephone cable
work within the coverage of the types of construction
work defined therein. Therefore, in view of the
Employer's operation and the type of work involved
in the instant dispute, it appears that while the
bargaining agreements may not in themselves be
determinative the Employer's agreement with IBEW
tends to favor an award to IBEW.
2. The Employer's preference and company,
area, and industry practice
The Employer strongly favors an award to its
employees who are members of IBEW. With the
exception of its firstjob in early 1966, when it assigned
drop work to members of Engineers, the Employer
consistently has used only IBEW members to perform
A Jones Construction Company), 135 NLRB 1402
8 N L R B v Radio & Television Broadcast Engineers Union, et al
(Columbia Broadcasting System), 364 U S 537
9 The Employer's attorney noted in this regard that although drop work
may have been conducted on private property. the telephone company had
easements thereon
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all of the work involved in the trenching and laying of
underground telephone cable.
Both Engineers and IBEW offered some evidence
that their respective members had performed the
work in issue for other employers in the area. Such
evidence, however, merely corroborates the claim of
each of the parties and, therefore, does not clearly and
uniformly favor either labor organization. IBEW,
however, offered evidence that for a minimum of 13
years two other employer-parties to the IBEW-NECA
agreements who perform drop work in 26 and 12
states, respectively, including the State of Illinois,
have used only IBEW members to perform all of the
tasks required in drop work, including the operation
of the equipment. Engineers, on the other hand,
introduced virtually no evidence of industry practice.
It appears, therefore, that within the context of the
proffered evidence, both employer and industry
practice favor an award to members of IBEW.
assign separate operators for each machine used. The
Employer's electricians, however, are not restricted to
the operation of any piece of equipment. Moreover,
they not only operate the equipment as skillfully as
Engineers, but they also perform any and all of the
tasks involved in the overall job of laying cable, which
Engineers cannot or will not do. Consequently, an
assignment other than as made by the Employer in
this instance, would require it to hire additional
unnecessary employees, increase its operating costs,
and affect the efficiency, economy, and flexibility of
its operation.
Conclusion
Having considered all pertinent factors present
herein, we conclude that employees represented by
IBEW are entitled to perform the work in dispute.
Our present determination is limited to the particular
controversy which gave rise to this proceeding.
3. Skill, efficiency, flexibility, and economy
There is nothing in the record to indicate that the
members of the competing labor organizations cannot
perform the disputed work with equal skill. The laying
of underground cable, however, involves more than
the single process of operating equipment; it also
involves hand trenching, laying the cable either by
hand or by plow, and the electrical work involved in
connecting the feeder cable to the main cable and to
the user's establishment-all of which Engineers
specifically disclaims. Engineers further disclaims the
handling of the cable under any circumstances, even
if the plow plantmg the cable is an integral part of the
tractor or machine Engineers wishes to operate.
Moreover, Engineers would require the Employer to
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 case,
the National Labor Relations Board hereby makes
the following determination of dispute:
Employees employed by JRJ Excavating Company,
Incorporated, who are represented by Local 702,
International Brotherhood of Electrical Workers,
AFL-CIO, are entitled to perform the work of
operating the equipment (a trenching machine and an
R-60 tractor) utilized in the trenching and laying of
underground telephone feeder cable from the main
telephone cable of residential and commercial estab-
lishments on its Rosiclare, Illinois, project.