Local 3, Int'l Brotherhood of Electrical Workers

LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 561 Local 3, International Brotherhood of Electrical Workers, AFL- CIO and Picker X-Ray Corporation and Lenox Hill Hospital. Cases Nos. 2-CD-182 and 2-CD-182-2. August 11, 1960 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which pro- vides that, "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen. . . ." On November 30 and December 3, 1959, respectively, Picker X-Ray Corporation, herein called Picker, and Lenox Hill Hospital, herein called Hospital, filed separate charges with the Regional Director for the Second Region, alleging that Local 3, International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 3, had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act. It was charged, in sub- stance, that Local 3 had engaged in conduct proscribed by the afore- mentioned provisions for the purpose of forcing or requiring Picker to assign particular work to members of Local 3 rather than to its own servicemen. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.89 and 102.90 of the Board's Rules and Regulations (Series 8, 1959), the Regional Director investigated the charges and provided for an appropriate hearing upon due notice to all parties. The hear- ing was held before James J. Graham, hearing officer, on March 23, 1960. Picker and Local 3 appeared at the hearing and were afforded full opportunity to be heard and to adduce evidence bearing on the issues. Picker and Local 3 stipulated at the hearing that the record in Cases Nos. 2-CC-541 and 541-2, which involves the same parties as herein and in which a Decision and Order is being issued this day,' was to constitute the record in the instant cases. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases,' the Board 3 makes the fol- lowing findings : ' Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Picker X-Ray Corporation), 128 NLRB 566. 2It is hereby ordered that Cases Nos. 2-CD-182 and 2-CD-1'82-2 be, and they hereby are, consolidated for decisional purposes. 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the -Board has delegated its powers in connection with these cases to a three-member panel ([Chairman Leedom and Members Bean and Jenkins]. 128 NLRB No. 75. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. The business of the Companies Picker X-Ray, with its principal office in White Plains, New York, a manufacturing plant in Cleveland, Ohio, and branch offices in various States of the United States, is engaged in the manufacture, sale, distribution, and servicing of X-ray and radiation equipment and related products. During the past year, the Cleveland, Ohio, plant sold products to points outside the State of Ohio, valued in ex- cess of $10,000,000. Lenox Hill Hospital, herein called Hospital, is a nonprofit New York corporation, engaged in New York City in the operation of a nonprofit general hospital providing the usual hospital services. During the past year Hospital has purchased drugs and foods, valued at $100,000, which were shipped to it directly from points outside the State of New York. Neptune Storage Company, Inc., herein called Neptune, with its principal office in New Rochelle, New York, is engaged as a common carrier by motor vehicle, certificated by the Interstate Commerce Commission to perform services in interstate commerce. During the past year, Neptune received revenue, in excess of $50,000, for trans- porting goods in interstate commerce outside the State of New York. We find that it will effectuate the policies of the Act to assert juris- diction in these cases. 2. The labor organization involved Local 3 is a labor organization within the meaning of the Act. 3. The dispute The Hospital contracted with Picker for the purchase of a cobalt 60 therapy unit to be used in its new wing under construction. This contract provided that Picker was to deliver, assemble, install, wire, and test the unit, as well as instruct Hospital's personnel in its opera- tion. Picker selected Neptune to deliver the cobalt unit to the con- struction site. On November 5, 1959, a Neptune truck arrived at the Hospital with the unit. Warren Loud, a Neptune driver, and three helpers pro- ceeded to unload the equipment. They were soon approached by Oliver Owens, an electrician employed by Belmont Electric Company, Inc.,4 and shop steward of Local 3. Owens stated to Loud, in the presence of the three helpers, that this was electrical equipment which 4 Herein called Belmont, which had been engaged to perform the electrical wiring for the new wing; its employees were represented by Local 3. Neptune's employees were represented by Teamsters Local 814. Local 3 had lost a representation election among Picker's servicemen in June 1959 , and those employees were unrepresented. LOCAL 3 , INT'L BROTHERHOOD OF ELECTRICAL WORKERS 563 should be handled by members of Local 3 and that they should stop unloading the equipment until delegates of Local 3 and Teamsters' Local 814 arrived to decide who was to handle the work. Loud and his helpers performed no more work until the arrival of the delegates about an hour later. In the meantime, Herbert Pinepuks, the Hospi- tal's project manager for the new construction, appeared and, in the presence of Owens, asked Loud "what was holding up the works." Loud replied that a dispute had arisen between his union and Local 3 as to who was to unload the equipment. When Pinepuks stated that he wanted the Neptune men to unload the equipment, Owens stated that "nobody should touch the unloading of the machine" until the delegates arrived "or the whole job will be stopped there. The ele- vators would be shut down and everything." After the union delegates of Local 3 and Local 814 arrived, the Neptune employees were directed to unload the equipment and the electricians were permitted to help with the last few pieces. The un- loading of the entire unit was completed that afternoon. Meanwhile, on the third floor, Elmer Laube, a Picker serviceman, was preparing a 10- by 14-foot room for the installation of the cobalt unit. Also in the same room was a Belmont electrician at work on outlets. Laube was approached by Owens, who identified himself a shop steward for Local 3, and inquired of Laube whether he had a Local 3 card. When Laube replied in the negative, Owens stated that the installation of the unit was the electrician's job and that Laube should stop working. Laube summoned his foreman, Thomas Thomp- son, who entered the room with Robert Hoffman, Picker's sales engi- neer. Laube then asked Owens if he could finish his work and Owens replied in the negative, stating that he had orders from "downtown" that "Picker X-Ray doesn't work on this job." Thompson told Laube to cease working. On or about December 1, Herbert Akers, Picker's executive sales manager, contacted Owens regarding the installation of the cobalt unit. Akers told Owens that Hospital wanted Picker to install the equipment with Picker's servicemen, and asked Owen if any trouble could be expected. Owens replied that the electrical contractor on the job generally did all the work on this particular type of job and that "in the past we walked off the job and I believe the same thing would happen." Owens also stated that they had had trouble with Picker X-Ray previously. a. Contentions of the parties Picker and Hospital contend that Local 3 violated Section 8(b) (4) (D) of the Act by the above conduct. Local 3 admits that it was in dispute with Picker over the assign- ment of the installation work at the Hospital, but it appears to de- 564 DECISIONS OF NATIONAL LABOR- -RELATIONS BOARD fend itself herein on such grounds as that : it is not responsible for Shop Steward Owens' conduct; in any event, Owens did not engage in unlawful inducement or encouragement of employees within the meaning of Section 8(b) (4) (D) ; and Local 3 had an agreement with Picker which entitled it to the work in dispute. b. Applicability of the statute The charges, which were duly investigated by the Regional Director, allege a violation of Section 8 (b) (4) (D) of the Act and the Regional Director was satisfied, on the basis of his investigation, that a viola-- tion of this section was committed. In a proceeding under Section 10(k) of the Act, the Board is required to find only that there is reasonable cause to believe that Section 8 (b) (4) (D) has been violated before proceeding with a determination of the dispute out of which the unfair labor practice has arisen.5 The record contains ample evidence to warrant a finding, as has been concluded in Cases Nos. 2-CC-541 and 541-2, that Local 3 must share responsibility for Owen's behavior herein. Thus, it shows that Owens was a shop steward of Local 3 and contains testimony that Owens admitted that, as shop steward on the job, he had authority to make decisions with respect to union matters and that he had orders from "downtown" that "Picker X-Ray doesn't work on this job." And Owens' conduct which interrupted the unloading by Neptune's employees on November 5 was not disavowed by the Local 3 delegate who was summoned to the scene, indeed, it appears to have been rati- fied by him. We also find clear evidence of inducement or encouragement of employees to engage in a concerted refusal to work within the mean- ing of Section 8(b) (4) (D) in Owens' conduct vis-a-vis the Neptune employees and Picker Serviceman Laube, in the presence of the Bel- mont electrician, on November 5. Inasmuch as reasonable cause also exists to believe that an object of Owens' conduct was to compel Picker to reassign the installation work from its own employees to Local 3 members, we find that the dispute herein is properly before the Board for determination under Section 10(k) of the Act. c. Merits of the dispute An employer is free to make work assignments without being sub- jected to strike pressure by a labor organization seeking the work for its members unless the employer is failing to conform to an order or 5 Building Service Employees International Union, Local 32-J, AFL-CIO (Hewitt Robins, Inc.) 127 NLRB 30; Millwrnghts Local 1102, Unsted Brotherhood of America, AFL-CIO, et al. (General Riggers and Erectors, Inc.), 127 NLRB 26. LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 565 certification of the Board determining the bargaining representative for employees performing such work or unless the employer is bound by an agreement to assign the work in dispute to the claiming union.,, Local 3 is not the beneficiary of any Board order or certificate enti- tling it to claim the disputed work. It claims, however, that it has an agreement or understanding with Picker covering the disputed work which warrants a determination in its favor. It bases this contention on testimony by Local 3 witnesses that, in 1953, a joint electrical board comprised of public, labor, and management officials purchased an X-ray machine from Picker to be used at the joint board's medical clinic; that Akers made an oral agreement with Local 3 whereby members of Local 3, who were employed by an electrical contractor, were to install the equipment and Picker's employees were to assist them; and that Local 3 members were customarily awarded electrical work in the New York City area. However, Akers testified that Picker never entered into the alleged agreement with Local 3 and that Picker's general practice in the area is to have its own employees do the necessary electrical work on its equipment. Even accepting Local 3's testimony here, we find no basis in this record for holding that Local 3 has any contractural claim to the dis- puted work. In the circumstances, we conclude that Local 3 was not and is not lawfully entitled, by means proscribed by Section 8(b) (4) (D), to force or require Picker to reassign work being performed by its own employees to members of Local 3. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and upon the entire record in these cases, the Board makes the following determination of dis- pute pursuant to Section 10(k) of the Act: 1. Local 3, International Brotherhood of Electrical Workers, AFL- CIO, is not and has not been lawfully entitled to force or require Picker X-Ray Corporation to assign work to its members rather than to Picker's own employees who are not members of that labor organiza- tion. 2. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 3, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for the Second Region, in writing, whether or not it will refrain from forcing or requiring Picker X-Ray Corporation, by means proscribed by Sec- tion 8 (b) (4) (D) of the Act, to assign the work in dispute to members of the aforesaid union rather than to Picker's own employees who are not members of Local 3. 6 Ibid. 577684-61-vol. 128-37