ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR)
International Union of Elevator Constructors, IUEC,
Local No . 91 and Otis Elevator Company and
Building Systems Company
International Union of Elevator Constructors
(IUEC) and Otis Elevator Company and Build-
ing Systems Company. Cases 39-CD-29-2 and
39-CD-30-2
10 October 1986
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
The charges in this Section 10(k) proceeding
were filed 5 February 1986 by the Employer, Otis
Elevator Company, alleging that the Respondents,
International Union of Elevator Constructors,
IUEC, Local No. 91 (Local 91 or Elevator Con-
structors) and International Union of Elevator
Constructors (IUEC) (the International) violated
Section 8(b)(4)(D) of the National Labor Relations
Act by engaging in proscribed activity with an
object of forcing the Employer to assign certain
work to employees they represent rather than to
unrepresented employees employed by the Building
Systems Company (BSC). The hearing was held on
5 and 6 March 1986 before Hearing Officer Susan
Cole.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
I. JURISDICTION
The Employer, a New Jersey corporation, is en-
gaged in the business of the manufacture, research
and development, and nonretail sale and distribu-
tion of elevators and related products at its facility
in Farmington, Connecticut. During the year pre-
ceding the hearing held in this case, it purchased
and received products , goods, and materials valued
in excess of $50,000 at its Farmington , Connecticut
facility directly from points located outside the
State of Connecticut . The parties stipulate, and we
find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that Local 91 and the International are
labor organizations within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
1241
A. Background and Facts of Dispute
The International and the National Elevator In-
dustry , Inc. (NEII) have entered into a series of
collective-bargaining agreements . Otis Elevator
Company (Otis) is a member of NEII and a signa-
tory to its current agreement (Standard Agree-
ment), which is effective from 9 July 1982 through
8 July 1987. Under the Standard Agreement the
International represents all elevator constructor
mechanics and helpers whose employers are mem-
bers of NEII . Local 91 is the International affiliate
that has jurisdiction over the Otis employees locat-
ed in Connecticut . BSC is not a member of NEII
and its employees are unrepresented.
In 1982 Otis began installing remote electronic
monitors (REM) on its elevators . These devices
monitored the operation of the elevator and auto-
matically detected problems such as cars stopped
between floors, open door locks , and faulty brakes.
The information detected by the REM was relayed
to a remote center over telephone lines. These
early REMs (REM 1) combined the "master" and
"slave" units in one container and were installed by
a three-man team composed of an elevator con-
structor and helper and an unrepresented Otis em-
ployee. The unrepresented Otis employee made a
survey of the place where the REM I was to be
installed and prepared the wiring diagram neces-
sary for the installation . Then the elevator con-
structor mechanic and helper mounted the REM I
and connected it to the elevator controller as well
as to the telephone and power lines . After these
connections had been completed, an unrepresented
Otis employee tested the REM I with the aid of a
hand-held computer, and made the necessary ad-
justments. Unrepresented Otis employees conduct-
ed periodic surveys of the installed REMs.1
Otis experienced problems with the REM I, and
in the fall of 1983 BSC was hired to develop a
monitoring device that would be trouble free.2
BSC worked for a year on the development of the
REM II. In the fall of 1984, the REM II was ready
to be installed.
The REM II furnished the same information as
the REM I; however, the "master" and "slave"
units were no longer contained in the same recepta-
cle, but were mounted separately . The "master"
unit, which could now be mounted inside or out-
side the machine room, was connected to the
"slave" unit which, in turn, was wired to the eleva-
' Surveying involved checking the overall performance of the installed
REM units.
2 BSC specialized in remote electronic monitoring and had developed
such devices for monitoring heating , cooling, and ventilation equipment
281 NLRB No. 171
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor controller. The REM II was installed by a
three-man team. An unrepresented employee3
made the survey, prepared the wiring diagram
prior to the installation of the REM II, and tested
and adjusted the device after the installation had
been completed. The elevator constructor mechan-
ic and helper mounted the "master" and "slave"
units, wired the "slave" unit to the elevator con-
troller, and connected the "slave" to the "master"
and the "master" to the power source and the tele-
phone line.
In the fall of 1985,4 BSC modified the REM II.
The "slave" was no longer connected directly to
the elevator controller, but instead was connected
to a wire and harness and the harness was wired to
the elevator controller. The elevator constructor
mechanic and helper wired the harness to the ele-
vator controller, mounted the "master" and "slave"
units, and made the necessary connections.
During the latter part of the year, however, Otis
and BSC changed the assignment to have the un-
represented employee do the remaining installation
work after the harness had been wired to the eleva-
tor.
About December, John DeRosa, Local 91 busi-
ness agent, learned that Otis was now assigning to
BSC employees the mounting and connecting of
the "master" and "slave" units. DeRosa contacted
Otis and a meeting was arranged for 16 December
to discuss the matter. Wayne Smith, director of
field labor relations, and Howard Beressi, senior
service engineer, attended the meeting on behalf of
Otis, while DeRosa represented Local 91. Smith
explained that Elevator Constructors would contin-
ue to wire the harness to the elevator controller
but that the remaining REM II installation work
would be done by unrepresented BSC employees.
DeRosa stated that all the work in the machine
room (where the REM II had been mounted and
the elevator controller was located) belonged to
Local 91. Smith and Beressi disagreed. DeRosa re-
sponded with the declaration that all the mainte-
nance people in the Otis Hartford office would be
on strike the next day. He then repeated the state-
ment and left. The following day, 17 December, 17
maintenance employees did not show up for work
and did not call in sick. The International was ad-
vised of the strike and later that day sent Local 91
a telegram ordering Local 91 to return the men to
work and to file a grievance over the controver-
3 Robert E Hall was responsible for the testing portion of the REM I
and unmodified REM II installation In July 1985 Hall was hired by BSC
to do the work he previously had performed for Otis At BSC, Hall was
assisted in installing REM Its by Tom Butwell, another unrepresented
BSC employee
4 All dates are in 1985 unless otherwise stated
sy.5 The strike lasted 1 day. As a result of the
strike Otis asked BSC to cease installing the REM
II.
On 20 December, DeRosa and George Popp,
International representative, met with Otis Repre-
sentatives Smith and Jeff Miller, director of indus-
trial relations. They discussed the installation of the
REM II. Smith and Miller claimed the work for
BSC. DeRosa then stated that if Otis installed one
REM unit in Hartford, there would be a strike.
Popp did not disavow DeRosa's statement.
In mid-January 1986, during a conversation with
elevator constructor Paul McClean, an Otis em-
ployee and Local 91 member, Beressi mentioned
that Otis engineers would be surveying the overall
performance of the REMs in the area . McClean in-
formed Beressi that DeRosa had told McClean that
if he cooperated with those doing the survey Local
91 would pull his union card. s Shortly thereafter,
Beressi called DeRosa. DeRosa admitted that he
had told his members that he would pull their
cards if they cooperated with the unrepresented
Otis employees doing the REM survey . Beressi ex-
plained that engineers had always performed the
surveys. DeRosa replied Local 91 members were
fully qualified to do the work.
B. Work in Dispute
The disputed work, as stated in the notice of
hearing, concerns the installation and surveying of
the elevator Remote Electronic Monitoring (REM)
equipment used by the Otis Elevator Company in
the State of Connecticut. The installation and sur-
veying of the REM involves the following proce-
dures: (1) inspecting (or surveying) the jobsite to
determine where the REM units are to be placed;
(2) preparing the wiring diagrams necessary for the
installation; (3) connecting a wire harness to points
on the elevator controller; (4) mounting the REM
"master" and "slave" units; (5) plugging the
"slave" unit into the harness; (6) connecting the
"slave" unit to the "master" unit; (7) connecting
the system to a telephone line; (8) connecting the
system to a power source; (9) switching on the
power; (10) testing and adjusting the system by use
of a hand-held computer; and (11) surveying the in-
stalled REM units.
s Local 91 filed a grievance in accord with the Standard Agreement
Local 91 and Otis were unable to resolve the dispute as to the REM in-
stallation at the first two steps and the grievance was submitted to the
Joint Industry Committee On 6 February the committee considered the
matter deadlocked Local 91 requested that the grievance be submitted to
arbitration An arbitrator has been selected but no heanng date has been
scheduled
6 The Standard Agreement includes a union-security clause requiring
that unit employees be union members
ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR)
The Employer conceded that only the elevator
constructors had the skill and were licensed to wire
the harness to the elevator controller . At the hear-
ing the International disclaimed the surveys of the
REMs done by the unrepresented Otis employees.?
Accordingly , we find that the wiring of the harness
to the elevator controller and the surveying of the
REMs are not in dispute . Therefore, we fmd that
the work in dispute consists of inspecting the job-
site , preparing the wiring diagram, mounting and
connecting the "master" and "slave" units, con-
necting the system to telephone and power lines,
and the testing and adjusting the REM by use of a
hand-held computer.8
C. Contentions of the Parties
The International and Local 91 contend that the
work in dispute is unit work subject to the Interna-
tional 's collective-bargaining agreement with the
Employer and thus the controversy is contractual
rather than jurisdictional and therefore not subject
to Sections 8(b)(4)(D) and 10(k) of the Act; that
Section 10(k) is inapplicable as the Employer alone
created the dispute by reassigning work formerly
performed by Local 91 members; and that the 10(k)
hearing requirements were not met ; that the dis-
pute involved the Elevator Contructors and Robert
Hall, a BSC supervisor and other BSC employees
who also might be supervisors ; and that there is no
evidence that the BSC-unrepresented employees
are claiming the work in dispute.
Alternatively, the International and Local 91
contend that the work in dispute should be award-
ed to employees represented by them based on
economy and efficiency, relative skills , practice and
prior decisions , the collective-bargaining agree-
ment, job function , and job loss.
The Employer contends that this case is properly
before the Board for determination ; that reasonable
cause exists to believe that the International and
Local 91 violated Section 8(b)(4)(D); and that the
r The Employer contends that the International did not effectively dis-
claim the surveying of the REM portion of the work in dispute. We find
that the record clearly shows that the International 's disclaimer was
clear, unequivocal , and unqualified. See Electrical Workers IBEW Local
202 (W. B. Skinner, Inc.), 271 NLRB 171, 172 (1984). We also find that
while Local 91 did not specifically disclaim this work , at no time during
the hearing did it claim the surveying of the installed REMs and in its
brief it limits its claim to those portions of the work in dispute relating to
the installation of the REMs. Because the surveying of the REMs is pos-
tinstallation work, we find that Local 91 does not seek the postinstallation
surveying of the REMs.
8 The Employer contends that the International did not effectively dis-
claim the inspection of the worksite and preparation of the wiring dia-
gram portions of the work in dispute . We agree . At the hearing the Inter-
national was equivocal about whether it was claiming such work. The
Local was silent . The Board requires that the party making a disclaimer
make a clear , unequivocal , and unqualified disclaimer of the work in dis-
pute Electrical Workers IBEW Local 202 (W. B. Skinner, Inc.), supra The
Respondents did meet this burden.
1243
work in dispute should be awarded to BSC's un-
represented employees based on industry and area
practice , employer's present assignment and prefer-
ence, skills, and economy and efficiency.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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) there is no agreed method for vol-
untary resolution of the dispute.
With respect to (1), Wayne Smith testified that at
the 16 December 1985 meeting between Otis and
Local 91 DeRosa claimed for Local 91 the work
involving the installation of the REM II , and that
twice during the meeting he threatened to strike if
members of Local 91 were not given the work.
Further, Local 91 called a strike on 17 December.
Smith also testified that at the 20 December meet-
ing, attended by Otis , Local 91 , and International
representatives , DeRosa again claimed the installa-
tion work and threatened a strike "if one more
REM unit was installed in Hartford ." The Interna-
tional representative did not disavow the threat.
Howard Beressi testified that at the end of January
1986 DeRosa told Otis employees that their union
cards would be pulled if they cooperated with an
Otis-conducted engineering survey of the REM in-
stallations.
Although there are differences between the testi-
mony of DeRosa and that of Smith and Beressi, it
is well settled that a conflict in testimony does not
prevent the Board from proceeding under Section
10(k). In this type of proceeding, the Board is not
required to find that a violation did in fact occur,
but only that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated.9 We
reach this finding on the basis of the testimony of
Smith and Beressi as to the events of 16 and 20 De-
cember 1985 and mid-January 1986.
We find that the agreement's contractual and ar-
bitration procedure does not constitute an agreed-
on method for resolution of the dispute as BSC is
not bound by the agreement."°
The Respondent Unions rely on Teamsters Local
107 (Safeway Stores), 134 NLRB 1320 ( 1961), and
Longshoremen Local 62-B (Alaska Timber Corp.),
781 F.2d 919 (D.C. Cir. 1986), to support the con-
tention that Sections 8(b)(4)(D ) and 10(k) are inap-
plicable to the case at bar because the object of the
alleged illegal conduct was to recover work that
8 Iron Workers Local 563 (Midstates Corp). 272 NLRB 1371, 1372
(1984).
10 Operating Engineers Local 478 (Stone & Webster), 269 NLRB 655,
658 (1984).
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rightfully belonged to their members. We find no
merit to this contention. In Safeway Stores and
Alaska Timber Corp., the work the employers had
transferred to other employee groups had been per-
formed by members of the respondent unions. In
this case, however, while Local 91 members con-
nected the wiring harness to the elevator control-
ler, the unrepresented employees , at all times, had
done a significant portion of the work in dispute,
i.e., inspecting the jobsite, preparing the wiring dia-
gram, and testing, adjusting , and configurating the
REM system , a circumstance that belies the Re-
spondent Unions' claim that they were seeking to
regain their members' work. l i
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB v. Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573
(1961). The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience , reached by bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of the dispute.
1. Collective-bargaining agreement
Otis is signatory to the current NEII Standard
Agreement with the International. Under article IV
of that agreement the Union has jurisdiction over
work that involves direct contact with the elevator
and elevator apparatus such as handling , loading,
installing , wiring , and operating the elevator equip-
ment . The REM, however, is not elevator appara-
tus. It is a monitoring device that is not connected
to the elevator and does not directly affect its con-
trol or operation. Thus we find that the Standard
Agreement is ambiguous with respect to the disput-
ed work and that this factor does not favor award
of the work in dispute to either group of employ-
ees.
2. Relative skills
Until October 1985 the employees represented
by Local 91 mounted and connected the "master"
" We also find no merit in the Union's other contentions that Sec.
10(k) does not apply to this case based on the alleged supervisory status
of Hall and possibly other BSC employees and the failure of the BSC-
unrepresented employees to claim the work in dispute The possible su-
pervisory status of Hall and other BSC employees was not litigated in
this case Regarding the Unions ' other contentions, while the unrepre-
sented BSC employees have not made a claim for the work in dispute,
the fact that these employees are performing the work is evidence that
they claim the work Operating Engineers Local 926 (Georgia World Con-
gress Center), 254 NLRB 994, 996 (1981)
and "slave" units. After this date the BSC-unrepre-
sented employees did this work in connection with
their testing and adjusting the REM system. Thus,
both have the skill to perform and have performed
this portion of the work. This factor favors an
award to neither the employees represented by
Local 91 nor the BSC-unrepresented employees.
Regarding the surveying of the jobsites where
the REMs are to be installed, preparing of the
REM wiring diagrams, and testing and adjusting
the REMs with the aid of a hand-held computer,
the employees represented by Local 91 have not
performed this work nor is there evidence that
they presently have the skills to do so. BSC-unrep-
resented employees have the skills to perform the
work and have done so. Therefore, this factor
favors an award of the work to the BSC-unrepre-
sented employees.
3. Employer preference and assignments
Since July 1985 the Employer assigned the in-
spection of the worksite, preparing the wiring dia-
grams, and the testing and adjusting of the REM to
the BSC-unrepresented employees. Since October
1985 the Employer also assigned to the BSC-unrep-
resented employees those portions of the work in
dispute , which include mounting and connecting
the "master" and "slave" units and connecting the
installed units to the telephone and power line. As
to employer assignment , the bulk of the work at
issue has always been assigned to unrepresented
employees. However, as noted above, a small por-
tion of the work, the mounting of the "master" and
"slave" units, had until October been performed by
employees represented by Local 91. To the extent
Local 91-represented employees has been assigned
part of this work prior to October that factor
favors an award to them. However, on balance we
find employer assignment and preference favors an
award to the unrepresented BSC employees as they
have been assigned the remainder of the work and
since October have been assigned even the small
portion of the work previously performed by Local
91-represented employees.
4. Economy and efficiency of operation
As stated above, the REM "master" and "slave"
units are mounted and connected after the elevator
constructor mechanics have wired the electrical
harness to the elevator controller. Before October
1985 the elevator constructor mechanics had
mounted and connected these units. Thereafter the
BSC-unrepresented employees were assigned this
work. The mounting and connecting of the
"master" and "slave" units is an independent oper-
ation and does not require the skills and presence
ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR) 1245
of the elevator constructor mechanic . Only one
employee is needed to mount and connect these
units.
Although both the elevator constructor mechan-
ics and the BSC-unrepresented employees have the
requisite skills to perform this work, the Union re-
quires that the elevator constructor mechanic must
be accompanied by a helper while performing in-
stallation work . In addition , the elevator construc-
tor mechanics and helpers, unlike the BSC-unrepre-
sented employees , are paid portal to portal for jobs
outside their primary work area , which could in-
clude the jobsites on which REMs are to be in-
stalled . Thus, the Employer would realize some fi-
nancial savings by having the elevator constructor
mechanics wire the harness during their routine
and maintenance visits to the jobsites after which
the BSC-unrepresented employee mount and con-
nect the "master" and "slave" units and test and
adjust the REM system . This factor therefore
favors an award to the BSC-unrepresented employ-
ees.
Conclusion
After considering all the relevant factors, we
conclude that BSC's unrepresented employees are
entitled to the work in dispute . We reach this con-
clusion relying on the factors of relative skills, em-
ployer preference and assignment , and economy
and efficiency of operation . This determination is
limited to the controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Unrepresented employees of Building Systems
Company are entitled to perform that portion of
the work involved in installing remote electronic
monitors to elevator equipment used by Otis Eleva-
tor Company in the State of Connecticut that per-
tains to inspecting the jobsite where the remote
electronics monitor is to be installed , preparing the
wiring diagram for the installation of the remote
electronic monitor, mounting and connecting the
"master and slave" units to each other and to tele-
phone and power lines, and testing and adjusting
the remote electronic monitor after the connections
have been made and the system is operational.
2. International Union of Elevator Constructors
(IUEC) and International Union of Elevators Con-
structors, IUEC, Local No. 91, are not entitled by
means proscribed by Section 8(b)(4)(D) of the Act
to force Otis Elevator Company to assign the dis-
puted work to employees represented by Interna-
tional Union of Elevator Constructors, IUEC,
Local No. 91.
3. Within 10 days from this date, International
Union of Elevator Constructors (IUEC) and Inter-
national Union of Elevator Constructors, IUEC,
Local 91 shall notify the Regional Director for
Region 39 in writing whether they will refrain
from forcing the Employer , by means proscribed
by Section 8(b)(4)(D), to assign the disputed work
in a manner inconsistent with this determination.