Int'l Alliance of Theatrical, Etc. Local No. 862

'738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the said Regional Director proceed in accordance with Section 102.69 of National Labor Relations Board Rules and Regulations, as amended.] MEI1BER FANNING took no part in the consideration of the above Decision on Review and Order. International Alliance of Theatrical Stage Employees and Mov- ing Picture Machine Operators of the United States and Canada, Treasurers and Ticket Sellers Local No. 862, AFL- CIO and Building Service Employees International Union, Public Events Employees Union, Local 188, AFL-CIO and Allied Maintenance Company of Pennsylvania, Inc. Case No. 6-CD-128. June 11, 1961 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act following a charge filed by Allied Maintenance Company of Pennsylvania, Inc., herein called Allied or the Employer, against International Alliance of Theatrical Stage Employees and Moving Picture Machine Oper- ators of the United States and Canada, Treasurers and Ticket Sellers Local No. 862, AFL-CIO, herein called Local 862 or the Respondent, alleging that Local 862 illegally coerced the Employer to change work assignments from one class of employees to another. A duly sched- uled hearing was held before George F. Mclnerny, hearing officer, on October 10, 1961. The Employer, Local 862, and Building Service Employees International Union, Public Events Employees Union, Local 188, AFL-CIO, herein called Local 188, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officer made at the hearing are free from prejudicial, error and are hereby affirmed. Upon the entire record, the Board makes the following findings: 1. The Employer Allied Maintenance Company of Pennsylvania, Inc., is engaged in the business of operating and maintaining auditoriums and other build- ings used for public events performances. The parties stipulated that in carrying on this business, Allied has performed services in excess of $50,000 for companies which annually ship products in excess of $50,000 outside the State of Pennsylvania. We find that the Employer is engaged in commerce within the meaning of the Act. 137 NLRB No. 79. INT'L ALLIANCE OF THEATRICAL , ETC., LOCAL NO. 862 739 2. The labor organization We find that Locals 862 and 188 are labor organizations within the meaning of the Act. 3. The dispute a. The work in dispute The Pittsburgh auditorium is a public arena designed and built to house public presentations of all varieties, such as sporting events, conventions, exhibitions, theatrical performances, etc. It is operated by the Public Auditorium Authority of Pittsburgh and Allegheny County, herein called the Authority. Allied, the Employer involved, contracted with the Authority to take over the management and house- 'keeping. functions necessary to the operation of the arena. Included in the work which its employees are to do is ticket selling for the pub- lic events, and it is this limited part of the duties of Allied's employ- ees which is in dispute here. While selling tickets, the ticket sellers are required to answer queries regarding seating arrangements, hours and schedules of performance, and the price of tickets. During May and June 1961, before any ticket-selling activities were scheduled, Respondent Local 862 advised officials of the Authority that it represented ticket-selling employees, that it had "jurisdiction" •over any. such work that might be performed at the arena, that "we were qualified people and wanted to be hired," and that it, Local 862, wished to be recognized as bargaining agent for such employees. Local 862 made essentially the same representations directly to Allied •on several occasions before June 20. The first show (Ice Capades) was scheduled to take place on Sep- tember 16. . During August the Company advertised for and received many hundreds of employment applications. No members of Local 862 applied for jobs as ticket sellers. The Company hired five or six persons whom it designated ticket sellers before September 16, and at least one was already at work by August 31. On or about ' September 12, 1961, approximately 1 week before the opening, Local 862 picketed the Arena for 21/2 days;. its pickets carried ..signs bearing the legend:. "Allied Maintenance Company of Penn- sylvaniaa+,does not employ,ticket sellers who are members of Local 862, AFL-CIO, I.A.T.S.E., at the new public auditorium." b. Contentions of the parties In its charge, the Company alleged that Local .862's purpose, when it picketed and induced employees to refrain from working, was to force the Company to assign ticket-selling work to members of that Union instead of to the Company's own employees. At the hearing, it 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contended only that its employees were not members of Local 862 and it therefore was not obligated to recognize Local 862 as bargaining agent. Its witness also asserted that the skills exercised by ticket sellers do not require that they be members of Local 862, and that it therefore had a right to continue the assignment to the ticket sellers it was then and is still now using. Local 188 of the Building Service Employees International Union intervened at the hearing and contended that it represented a majority of all of Allied's employees, including ticket sellers. It also moved that the notice of hearing be quashed on the ground that the facts do, not establish a jurisdictional dispute cognizable under Section 10(k) of the Act. More precisely it argued that because one of the two con- tending groups of employees- the ticket sellers represented by Local 862-are not in fact employees of the Company, there do not exist "two or more employee groups claiming the right to perform certain work tasks," a phrase appearing in the Supreme Court decision in the CBS case.' At bottom this position rests on the assertion that per- sons not in fact employed by the company involved in a Section 10(k) proceeding are not to be deemed employees in the appraisal of disputes under that section of the statute. Local 862, the Respondent, insists that the question here is a juris- dictional dispute within the intendment of the statute, and rests its claim for the work upon the asserted requisite skills, and industry practice. c. The applicability of the statute On consideration of the record in its entirety, we are satisfied that the essential elements of a jurisdictional dispute are revealed and that the issue is properly before the Board for determination. It is clear, and no contrary contention is advanced, that the purpose of the picket- ing was to bring about a work stoppage by employees at the arena and thereby to force Allied to comply with Local 862's demands. It also seems quite manifest, in view of the unequivocal language appear- ing on the picket signs, that Local 862 was seeking removal from their jobs of those persons then working as ticket sellers and placement in their positions of members of Local 862. The signs publicized the dispute as Allied's failure to "employ ticket sellers who are members of Local 862." In its early communications with the Authority and with Allied, Local 862 said, among other things, that it desired representation status as bargaining agent for any ticket sellers who might be em- ployed. At the hearing its agent also complained of not having been afforded an opportunity to act as the bargaining representative. How- 1 N.L R B. v. Radio & Television Broadcast Engineers Union Local 1212 International Brotherhood of Electrical Workers, AFL-CIO (Columbia B,oadcasting System), 364 U.S. 573. INT'L ALLIANCE OF THEATRICAL, ETC., LOCAL NO. 862 741 ever, in its written demands, Local 862 also claimed "jurisdiction" over ticket-selling work, it did not send any of its members to apply for the jobs when they were filled, and there is no evidence or claim that Local 862 either before or at the time of the hearing was attempt- ing to solicit the ticket sellers on the job to join that Union or to authorize it to act as their collective-bargaining agent. Moreover, that Union's business agent said at the hearing that his dispute with Allied was "over employing members of IATSE," and his expressed contention was that the dispute is a pure jurisdictional quarrel within the meaning of the statute. As to the motion to quash the notice of hearing, made by Local 188, the Board has long held that Sections 8(b) (4) (D) and 10(k) are not limited in their application to work disputes between two groups of employees both currently working for the same Employer? Indeed, in the recent Badolato case, a comparable situation was presented and viewed as a jurisdictional dispute within the meaning of those sec- tions.' And while Local 188 requests that the members of Local 862, on whose behalf the Respondent claims the disputed work, not be deemed employees for purposes of this proceeding, it did not disavow any claim on behalf of the employees at work whom it claimed to represent; indeed, a necessary implication of its total position is that they are entitled to continue in their present work assignment. Accordingly, on the basis of the entire record, we find that there is reasonable cause to believe that a violation of Section 8 (b) (4) (D) has occurred and that the dispute is properly before the Board for de- termination under Section 10 (k) of the Act. 3. Merits of the dispute The work claim for Local 862's ticket-seller members rests princi- pally upon the assertion that such work requires skills possessed to a sufficient degree only by them. The evidence supporting this broad assertion consists of the conclusionary statement of Local 862's wit- nesses and the statement by its business agent that the ticket-selling trade requires completion of a 3-year apprenticeship program main- tained by that union. The witness did not elaborate on the type of training or instruction involved, the work schedules provided, or the "journeymen" assistance performed by such an apprentice. He said only that the program was carried out under guidance of "an experi- enced man." Against the foregoing evidence, witnesses for the Com- 2 See International Longshoremen's and Warehousemen's Union, Local No. 16, CIO. (Juneau Spruce Corporation ), 82 NLRB 650, 653; International Longshoremen's and Warehousemen's Union, at at v Juneau Spruce Corporation, 342 U S 237, 244-245 (1952) ; and Un ited Mine Workers of America, District 50 (Turman Construction Com- pany), 136 NLRB 1068. 3lnternational Union of Operating Engineers , Local 66, AFL-CIO (Frank P Badolato c6 Son), 135 NLRB 1392. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany and for Local 188 testified that the only requisites for competent ticket-selling work are average intelligence, manual dexterity, and, above all, honesty. They expressed the opinion that a week's experi- ence suffices to train a full-time ticket seller. We do not doubt that the disputed work at times, particularly during rush hours when large amounts of money must be controlled, requires considerable mental concentration and manual dexterity; however, ordinary experience and commonsense point strongly to a measure of exaggeration by the Respondent's witnesses in this instance. Both Unions contend that custom and practice in this area and in the public entertainment industry generally support their respective work claims. On this subject, always a factor relevant to a work award in these proceedings, the evidence is factual and uncontradicted. However, in its totality, it is inconclusive and lends only partial sup- port to each of the conflicting claims. Thus, the record shows that Allied or its parent organization elsewhere has had, and has, collective- bargaining agreements with both of the two contending unions for ticket sellers, albeit through different constituent locals. At Yankee Stadium in New York Local F72 of IATSE represents the ticket sell- ers; at Wrigley Field, Los Angeles, Local 399 of the Building Service Employees represents the ticket sellers; at the Los Angeles Memorial Coliseum the same Local 399 also represents ticket sellers. The busi- ness agent of Local 862 testified without contradiction that his local represents ticket sellers at various Pittsburgh public events facilities, including the Nixon Theater, the Warner Theater, the Pittsburgh Symphony, and the Shrine Temple. It appears, however, that the Building Service Employees Union, again on the uncontradicted tes- timony of the president of Local 188, represents ticket sellers at the Pittsburgh University Stadium, the Heidelburg Raceway, South Park Speedway, the Pittsburgh baseball park, and the Wheeling, West Virginia, racetrack. We find this checkered pattern of union representation of ticket sellers by both claiming unions of little help in resolving the dispute presented. It indicates rather that there has been no traditional aline- ment of ticket sellers in this field within the limited membership of either union. A further argument advanced by Local 862 is that because its mem- bers sold tickets for certain public performances-such as the Pitts- burgh Civic Opera Company-when those presentations were given in other locations in Pittsburgh, they are now entitled to work at the arena when those performances will take place in the new location. This argument, too, is equally applicable to the work claim of Local 188 or any of its members who also at times were employed selling tickets for performing companies which moved their location into the new arena. HARRY TANCREDI 743 The foregoing is the sum total of the evidence received in this pro- ceeding which has a bearing upon the merits of the dispute, or the question of an affirmative assignment by this Board. As the skills required to perform the disputed work were not affirmatively shown to- be such as to fall exclusively within the jurisdictional claims of the Respondent Local 862, as the evidence relating to custom and practice locally or industrywide points with equal persuasion to a work as- signment in favor of either of the competing groups, and upon con- sideration of the record as a whole, we shall resolve the work dispute by assigning the work to the ticket sellers presently employed by the Company. We also find, therefore, that Local 862 was not and is not entitled to coerce Allied or to picket the Pittsburgh arena for the pur- pose of compelling the Company to change work assignments in favor- of members of Local 862. DETERMINATION OF DISPUTE On the basis of the foregoing, and upon the entire record in the case, the Board makes the following Determination of Dispute pur- suant to Section 10 (k) of the Act : Employees engaged as ticket sellers presently employed by the Em- ployer are entitled to the assignment of selling tickets at the Pitts- burgh arena. Accordingly, Local 862, I.A.T.S.E., is not and has not been lawfully entitled to force and require Allied to assign such work to its members. Within 10 days of the date of this Decision and Determination of- Dispute, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Treasurers and Ticket Sellers Local No. 862, AFL-CIO, shall notify the Regional Director for the Sixth Region, in writing, whether or not it will refrain from forcing or requiring Allied Maintenance Company of Pennsylvania, Inc., by means proscribed by Section 8 (b) (4) (D), to assign the work in dispute to its members rather than to employees presently engaged as ticket sellers. MEMBER RODGERS, concurring : I concur in the result. Harry Tancredi and Lionel Richman. Case No. 21-CA-4484.. June 22, 1962 DECISION AND ORDER REMANDING THE CASE TO THE TRIAL EXAMINER On April 30, 1962, Trial Examiner Herman Marx issued his Inter-- mediate Report in the above-entitled proceeding, recommending that. 137 NLRB No. 92.