Communications Workers of America, Local 1104

388 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD and was intended only to convey the fact that the employees could not be discriminated against bylaw because they joined the Petitioner. We shall therefore overrule objection No. 3.1 Accordingly, as we have overruled the objections and the Petitioner has received a majority of the valid ballots cast in the-election, we shall certify the Petitioner as the collective-bargaining representative of the employees in the appropriate unit. [The Board certified United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the designated collective-bargain- ing representative of the employees of the Employer in the unit, found appropriate.] 8 See Hollywood Ceramics Company, Inc., supra. Communications Workers of America, Local 1104, AFL-CIO and Frederick Bond, d/b/a Bond Electric Company, Charging Party -and New York Telephone Company and Local 25, Inter- national Brotherhood of Electrical Workers, AFL-CIO, Parties to the Dispute. Case No. 2-CD-276. March 19, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, following the'filing of charges under Section 8(b) (4) (D) of the Act. A hearing was held before Hearing Officer Evan J. Spelfogel on October 15, 17, and '18, 1963. All parties who ap- peared at the hearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing upon the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by all the parties who appeared at the hearing and have been duly considered.' Upon the entire record in the case, the Board a makes the follow- ing findings : 1. The New York Telephone Company, herein referred to as Telco, is a New York -corporation engaged in the business of providing 1 Subsequent to the hearing, Local 25, International Brotherhood of Electrical Workers, AFL-CIO, filed a motion with the Board to incorporate an additional exhibit into the record . All other parties, except Bond Electric Company, opposed the motion. The motion is hereby granted. As the matter contained in this exhibit is relevant to the issues in this proceeding and as it appears that the exhibit did not come into the possession of ,Local 25, IBEW, until after the close of the hearing , the record is hereby reopened and the proffered exhibit incorporated into the record. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman McCulloch and Members Leedom and Brown]. 146 NLRB No. 50. COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1104 389, local and long-distance communications and related services as part of a nationwide telephone system. As stipulated by the parties, dur- ing the year 1962, which period is representative of its annual opera- tions generally, Telco derived gross revenues in excess of $1,000,000 from its business operations, of which in excess of $1,000,000 was received for communications services between points within the State of New York and points in other States. Frederick Bond is an in- dividual doing business under the name of Bond Electric Company, herein referred to as Bond, with his principal office in the city of Glen Cove, New York. As stipulated by the parties, during the year 1962, which period is representative of his annual operations gen- erally, Bond performed services valued in excess of $50,000 for Telco. The parties stipulated,-and we find, that Telco and Bond are each engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to- assert jurisdiction herein. 2. The parties stipulated, and we find, that Communications Work- ers of America, Local 1104, AFL-CIO, herein,referred to as CWA, and Local 25, International Brotherhood of Electrical Workers, AFL- CIO, herein referred to as IBEW, are labor organizations within the meaning of the Act. - 3. The dispute : A. Statement of facts The dispute herein concerns a portion of the work required in con- nection with the installation of additional telephone service -in the Nassau County courthouse in Mineola, New York, during a major alteration of that building. In April 1963, Telco received the order for additional telephones and proceeded to install athem, utilizing for that purpose its own employees who are represented by CWA. Dur- ing the course of installation, an IBEW business representative com- plained to Haeger, a Telco official, that that part of the work which involved "inside wire cable and circuit installation" should have been contracted out to an electrical contractor, by virtue of a document known as the "Division of Work." 3 s The record is unclear as to the precise current status of this document. It was originally a contract between Telco and Local 3, International Brotherhood of Electrical Workers, executed perhaps as far back as 1903. It was last signed in 1917, when Local 3 had jurisdiction over Nassau County as well as the entire city of New York. It seems to have listed various types of work frequently needed by Telco and to have reserved some of that work for employees of Telco while obligating Telco to contract other portions of such work to independent electrical contractors. Employees of Telco have never been represented by the IBEW, but employees of electrical contractors used by Telco for this purpose have, for many years, been represented by IBEW. In 1932, Local 25 was chartered to take over the jurisdiction of Local 3 in Nassau and Suffolk Counties. In 1935, Local 3 notified Telco that it no longer considered itself bound by the agreement . The record shows; that, despite such ^ cancellation , Telco continued to assign certain work to inde- pendent contractors and that, in 1946, Telco promulgated a document called Division of Work, which it provided for the guidance of its supervisors in determining whether to use outside contractors for specified types of work. It is this latter document which was introduced in evidence ; no copy of the original agreement was produced. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After an investigation and discussions among its officials, Telco withdrew its own employees from the disputed work and ordered it done by Bond. On the morning of April 29,1963, two Bond employees reported to the Telco foreman on the jobsite. Some small amount of work was done by the two men who, for reasons not established on the record, were then sent home by the Telco foreman after being on the job less than 4 hours. From April 29 to May 7, numerous discussions were held among representatives of Telco, CWA, IBEW, and Nassau County, but they were unsuccessful in resolving the dispute. When Telco put its own employees to work again on May 7, county officials canceled their order for new telephone service. No telephone work was performed on the site until May 17, when IBEW agreed with county officials not to picket if CWA members were assigned the work. Telco then completed the job with its own employees. The record shows that on or about May 1, the secretary of CWA told Telco's division plant superintendent, that ". . . CWA considered the work in issue their work ... that if Local 25 pulled the cable, the CWA would refuse to connect telephone service and would refuse to service the job, altogether." B. Contentions of the parties The IBEW and Bond take the position that the disputed work should be contracted out by Telco to an independent electrical con- tractor employing members of IBEW. They rely on the "Division of Work" document, on Telco's alleged practice over the years of using contractors for such work, and on the need for electricians' skills in order to perform the work. Telco and CWA contend that the work should be performed by Telco's employees who are represented by CWA. They allege that Telco has always used its own employees to perform such work on county-owned buildings, such as the one in dispute here, and deny that the practice of using contractors on privately owned buildings is rele- vant to the determination herein. They further urge that the work in dispute does not require the skills of a journeyman electrician, or the expenditure of the much higher rates of pay received by electricians. They also point out that Telco's assignment of the work to its own em= ployees is consistent with the Board certification of CWA and with Telco's collective-bargaining agreement with CWA. C. Applicability of the statute The Board must be satisfied that there is reasonable cause to believe that Section 8 (b) (4) (D) of the Act was violated before it may proceed with a determination of dispute pursuant to Section 10 (k) of the Act. COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1104 391 The CWA attorney admitted at the hearing that it had made threats to Telco that if IBEW employees installed the cable and wires, mem- bers of CWA would refuse to connect the telephones. We find; upon the basis of the foregoing, that there is reasonable cause to believe that Section 8(B) (4) (D) has been violated, and that the dispute is prop- erly before the Board for determination under Section 10(k) of the Act. D. Merits of the dispute Much of the hearing in this matter was devoted to the effect which should be given to the "Division of Work" document. In situations in which a new building is being erected or structural changes are be- ing made on an existing building , and the rest of the project is union- ized, this document specifies whether particular work is to be done by Telco's own employees or by an independent contractor. IBEW con- tends that it is entitled to the disputed work because the instant job is both a structural change and entirely unionized , and also because the terms of the "Division of Work" document assign work such as is involved here to independent contractors . On the record before us, however, and in view of the fact that the document is currently being used only as a guide to Telco supervisors, we cannot give it the status of an agreement which is binding on the parties, as IBEW would have us do. Rather, we look upon it as evidence of a practice on the part of Telco to contract certain work to independent contractors. In this connection, it is significant that on certain occasions in the past the document was actually followed by Telco in letting out contracts. With respect to Telco's actual practice, all the instances recounted in the record when Telco contracted out work involved either privately owned buildings or original construction of county-owned buildings. However, all the instances recounted in the record of structural changes on county-owned buildings, such as is in dispute here, involved assignment of the work to Telco employees. Under these circum- stances, we find that the only relevant Telco practice is to assign such work to its own employees and that this factor favors the contentions of CWA and Telco. The work in dispute consists of drawing telephone wires through indoor conduits or ducts, fastening such wire to walls by means of staples or clamps, and attaching backboards to walls by means of screws. The record shows that this work involves use of the simplest hand tools, that a moderately intelligent man can be trained in as little as 1 day to perform the work, and that occasionally untrained individuals may be put to work at this task . We therefore find that the high skills of a journeyman electrician are not necessary for the competent performance of the work herein. We note, moreover, that 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the current wage rate of a journeyman electrician under the IBEW contract is $5.10 per hour, while the current wage .rate of an installer under the CWA contract is approximately $3.51 per hour. The Board, in 1961, certified CWA as collective-bargaining repre- sentative of all Telco's plant department employees. The current collective-bargaining agreement between these parties covers all.such employees, including installers who have been assigned the disputed work by Telco 4 IBEW has no agreement with Telco, but Bond is a signatory to the agreement between IBEW and the Nassau and Suffolk Chapter of the National Electrical Contractors Association, which is silent concerning the type of work in dispute herein. We find, therefore, that Telco's assignment of the work is consistent with the Board certification of CWA as representative of Telco's employ- ees and with Telco's collective-bargaining agreement with 'CWA. We further find that such assignment'is not' inconsistent with the Bond- IBEW contract. Weighing the factors relied upon by Telco and CWA on the one hand, against those cited by Bond and IBEW on the other, we con- clude that the former outweigh the latter. As Telco has used its own employees for similar work on county-owned projects in'the,past, as Telco has assigned the disputed work to them, as they are suffi- ciently skilled to perform it, as the assignment is consistent with the Board certification and with the terms of the collective-bargaining agreement between Telco and CWA, and as performance of such work by Telco employees is more economical than utilization of electricians, we shall determine the dispute in favor of the Telco employees who performed the work. Our present determination is limited to the particular controversy which gave rise to this proceeding.! In mak- ing this determination, we are assigning the controverted work to Telco employees represented by CWA, and not to CWA or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing and the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : 4IBEW contends that Telco's order to Bond to perform the work constituted an assign- ment of the work to IBEW members. The record shows, however, that Telco originally assigned the work to its own employees , contracted with Bond only after IBEW pro- tested such assignment, and has consistently taken the position throughout these pro- ceedings that its own employees should be awarded the work. We find, therefore, that Telco has assigned the disputed work to its own employees represented by CWA, rather than to Bond's employees represented by IBEW. 5 The courthouse project where this dispute arose has been completed. Our determina- tion herein covers assignment of the work in issue in any area served by Telco, where the geographical jurisdiction of Communications Workers of America, Local 1104 , AFL-CIO, and; 'Local), 25,4 'International fBrotherhood • of, Electrical worke4s,4 .AFL-CIO,', coincide: Local Union No. 8, IBEW, AFL-CIO ( Western Electric Company, Incorporated), 141 NLRB 888, footnote 12. BARBERTON PLASTICS PRODUCTS, INC. 393 Employees of the New York Telephone Company, currently repre- sented by Communication Workers of America, Local 1104, AFT, ,CIO, are entitled to perform the following work : Inside wire cable .and circuit installation work required for the installation of tele- phone and other communications equipment in major alterations of -county-owned buildings. Barberton Plastics Products, Inc. and International Chemical Workers, AFL-CIO. Case No. 8-CA-2854. March 19, 196.E SUPPLEMENTAL DECISION AND ORDER On March 7, 1963, the Board issued a Decision and Order in the above-entitled proceeding' finding, inter alia, that the Respondent had discriminated against employee Detrick in violation of Section 8(a) (3) and (1) of the Act, and directing that the Respondent offer said employee immediate and full reinstatement to his former or substan- tially equivalent position and makehim whole for any loss of pay suf- fered by reason of the Respondent's discrimination against him. On July 1, 1963, the Board's Acting Regional Director for the Eighth Region issued and served on the parties a backpay specification and notice of hearing, alleging that the Respondent's obligation to make whole employee Hetrick would be discharged by payment of certain liquidated amounts due him in the period between the unlaw- ful discrimination against him and June 30, 1963, and additional un- determined amounts accumulating from July 1, 1963, to the date of an offer of reinstatement. On July 10, the Respondent filed an answer thereto. Pursuant to notice, a hearing was held before Trial Ex- aminer John F. Funke for the purpose of determining the amount of backpay due the aforesaid employee in the period from the date of the discrimination against him to June 30, 1963. On December 2, 1963, the Trial Examiner issued his Supplemental Decision, attached hereto, in which he found that Hetrick was entitled to payment of $2,844.96. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Supplemental Decision and briefs in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The i 141 NLRB 174. The Trial Examiner's Supplemental Decision inadvertently cites this case as 141 NLRB 458. 146 NLRB No. 54.