I.B.E.U., Local 683

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local Union No. 683, AFL-CIO and Muralt Elec- trical Organization, Inc. and International Union of District 50, United Mine Workers of America, and Fry, Inc. and Febus Excavating Company. Case 9-CD-112 November 30, 1967 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Muralt Electrical Organization, Inc., herein called Muralt or the Employer, against International Brotherhood of Electrical Workers, Local Union No. 683, AFL-CIO, herein called the Respondent. The charge alleged that Respondent threatened to cause picketing and/or a strike and did cause picketing at the premises of King's De- partment Store, Lancaster, Ohio, and induced and encouraged individuals employed by Fry, Inc., herein called Fry, Febus Excavating Company, and Muralt to withhold their services from their respec- tive employers, with an object of forcing and requir- ing Muralt to assign or award all electrical work at the King's Department Store construction site to employees represented by or who are members of Respondent rather than to employees who are represented by or are members of International Union of District 50, United Mine Workers of America, herein called District 50. Pursuant to notice, a hearing was held on September 19, 1967, before Hearing Officer Mark Fox. All parties par- ticipated in the hearing and were afforded full op- portunity to be heard, to examine and cross-ex- amine witnesses, and to adduce evidence bearing upon the issues. Thereafter, the Charging Party and the Respondent filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The Board has considered the Hearing Officer's report and the briefs. Upon the entire record in the case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Muralt Electrical Organization, Inc., an Ohio corporation with its principal office and place of ' Muralt's 13 employees are now, and have been for some years, represented for collective-bargaming purposes by District 50. The most recent collective-bargaining contract is dated January 15, 1967 business located in Lancaster, Ohio, is engaged in the electrical contracting business. In the course and conduct of its business, Muralt annually per- forms services valued in excess of $50,000 for customers outside the State of Ohio. We find that Muralt 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 Respond- ent and District 50 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Issue The work in dispute is the electrical work in the construction of the King's Department Store pro- ject at Sixth Avenue and Memorial Drive, Lan- caster, Ohio. B. The Basic Facts Fry, Inc., was awarded a contract to construct the King's Department Store in Lancaster, Ohio. The electrical work for this project was let to Mu- ralt. Thus, on June 30, 1967 (all dates refer to 1967), Fry's President Pauley signed a purchase order (incorporating an attached contract by reference) which was sent to Muralt. The purchase order was conditional on receipt by Fry of an acknowledgement copy signed and executed by Muralt. When Muralt received the purchase order, it recognized that changes were necessary as addi- tional work was required. Between June 30 and July 12, Muralt received oral authorization from Fry to begin work on July 12, while the details of the purchase order were being worked out. The contract was finally signed on August 28. On July 11, Respondent's business manager, Hoover, asked Fry's foreman whether or not Mu- ralt had a contract for the electrical work on the job. According to the foreman's testimony, he replied that "I had a purchase order for the job from Mu- ralt, you know, to do the job." Hoover then stated that Muralt did not belong to his organization and that he would be down in the morning to picket the job. This information was relayed to Muralt by the Fry foreman. Hoover's version of this conversation differed in that he claimed the foreman told him that the contract for the electrical work was already let, although he, the foreman, did not know to whom the contract was awarded. On July 12, Muralt's employees' entered the 168 NLRB No. 94 I.B.E.U., LOCAL 683 construction site. Hoover was already there picket- ing with a banner which stated: "The electrical work on this job is not being done by IBEW Local 683." The other crafts then walked off and returned only when Muralt removed its men. Also on the 12th, Hoover questioned Fry's President Pauley about the contract with Muralt and was told, ac- cording to Pauley, that Muralt had not yet signed the contract proffered because it was in error. Ac- cording to Hoover, he was told that the electrical work had not yet been let at that time. On July 13, according to evidence offered by Muralt, the events of the 12th were, in substance, repeated. Muralt then "laid off" the job until July 20. Hoover picketed again on July 19 and, on July 20, was served with a local court injunction. Thereafter, Muralt worked varied hours (no full days) as every time his employees came on the job the other crafts walked off. On July 24, a telegram was sent from Fry to Muralt telling the latter to get off the job due to work stoppages caused by a labor dispute and due to the lack of acknowledgment of the Fry purchase order. Thereafter, American Elec- tric, whose employees are members of Respondent, worked on the job for 2 or 3 weeks, doing work that would otherwise have been performed by Muralt. Muralt came back on the jobsite on August 28. Ac- cording to Muralt's uncontradicted testimony, about the end of August or the beginning of Sep- tember, Respondent's business manager, Bricker, asked Muralt if he intended to stay on the job. When Muralt responded affirmatively, Bricker replied that "We figure we will have to shut it down again if you do." Hoover picketed again on Sep- tember 12, carrying a banner stating: "Muralt Elec- trical employees are not members of Local 683, IBEW." Some of the other crafts then walked off. Hoover admits that other trades were made aware of the dispute and were told that the job was being picketed, but he denies asking for their cooperation. He also admits that when he picketed on July 19, he was aware of the fact that Muralt had been awarded the electrical work. However, he denies that he knew on July 12 that Muralt was to perform the electrical work and, when asked why he picketed on the 12th, Hoover responded that he "understood we had a nonunion condition on the job." The charge was filed on July 13. On September 12, the Regional Director for Region 9 petitioned the United States District Court of the Southern District of Ohio Eastern Division for a temporary injunction under Section 10(1) of the Act, pending final disposition of the Board. On September 13, Respondent and the Regional Director entered into a stipulation by which Respondent agreed that s In support of its contentions , Respondent relies on the opinion of the U.S. District Court for the Western District of Missouri in Markwell v Local 978, Carpenters, 227 F Supp. 40, (1964). In that case, the court 659 pending disposition of the case by the Board, it would not cause picketing at the construction site nor in any manner employ means prohibited by Sec- tion 8(b)(4)(D) of the Act with an object of forcing Fry to assign the electrical construction work to electrical contractors whose employees are mem- bers of, or represented by, Respondent, rather than to Muralt, or forcing Muralt to assign the work to Respondent's members rather than to Muralt's own employees. C. Contentions of the Parties The Charging Party frames the issue as "whether, by its activities, Local 683 attempted to force an assignment of work to members of its local instead of laborers employed by Muralt who are members of District 50, United Mine Workers of America, in violation of Section 8(b), Sub para- graph (4)(D) of the NLRA," and contends that the evidence is clear that the motive of the admitted picketing was to force an assignment of work. Rely- ing on the threats made by Respondent to Fry and Muralt and the wording of the picket signs, the Charging Party deems it well established that Respondent picketed and caused the other crafts to strike with an object of forcing "Muralt to either leave the job site entirely, or assign electrical work on that job to members of Local 683." Respondent contends that the record does not reveal a jurisdictional. dispute cognizable under Sec- tion 10(k) of the Act and that, therefore, the notice of hearing must be quashed. In furtherance of this contention, Respondent claims that: (1) the assign- ment by Fry of the electrical work for the job in question was not made until August 28, the date on which Muralt complied with the conditions set out in Fry's purchase order; (2) Respondent never made a demand upon Muralt for the purpose of requiring Muralt to recognize or bargain with Respondent as the representative of Muralt's em- ployees; (3) no demand was made on Fry to dis- place any employees represented by District 50 and replace such employees with members of Respond- ent; and (4) the evidence shows that Respondent did not have, as the object of its picketing on July 12, 1967, the purpose of forcing Muralt or Fry to assign particular work to members of Respondent rather than to members of District 50 since "the evidence establishes that Respondent did not know, nor could they [sic] have reasonably known, that there were any Muralt employees to be displaced. The language used on the banner during the picket- ing of July 12, did not single out Muralt, but merely informed the public that: `The electrical work on this job is not being done by IBEW, Local 683."12 found that the picketing could not have been for the purpose of forcing the plaintiff to assign work to the picketing union because the work had not yet been assigned by plaintiff to members of any other union 336-845 0 - 70 - 43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Applicability of the Statute In a 10(k) proceeding, it is necessary to deter- mine whether there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. In the instant case, this requires, in view of Respondent's contentions, a finding as to whether there is reasonable cause for believing Respondent was claiming the work in question, and if so, whether Respondent used proscribed means to enforce its claim. Although the contract between Muralt and Fry was not finalized until August 28, it is clear from the record that Fry assigned the electrical work to Muralt before July 12 and that, on July 12, Muralt's employees entered the jobsite and commenced work on the oral authorization of Fry.3 In these cir- cumstances, the existence or nonexistence of a final contract between Muralt and Fry is immaterial; it is sufficient that by that time Muralt had com- menced work on the project pursuant to Fry's award of the electrical work, although some terms of the agreement were still to be worked out. Further, the testimony of Fry's foreman establishes reasonable cause to believe that at least as early as July 11, Respondent became aware of the assign- ment. Thus, we reject, as without merit, Respond- ent's contentions in this regard. Fry's foreman testified that on July 11, Hoover, after learning that the work had been assigned to Muralt, stated that Muralt did not belong to his or- ganization and that he would be down in the morn- ing to picket the job. Late in August or early in Sep- tember, Respondent's business manager, Bricker, on learning that'Muralt intended to stay on the job, told Muralt that Respondent would then have to shut the job down again. The foregoing threats, and the picket signs themselves, clearly establish reasonable cause to believe that Respondent was claiming the work in question for its members, that an object of its picketing was to force the assign- ment of the disputed work to employees who are members of or represented by Respondent, rather than to employees who are members of or represented by District 50 and, hence, that a ju- risdictional dispute exists.4 E. Merits of the Dispute Respondent does not contend in its brief that the work assignment should be made in favor of its members. Although testimony was introduced at the hearing tending to show that Respondent's members are competent and qualified to do this type of work, and that Respondent has contracts with other contractors in the area who do this type of work, it was not shown that Respondent's mem- ' Cf Markwell v Local 978, Carpenters, supra, fn. 2 4Sarrow-Suburban Electric Co, Inc., 152 NLRB 531, see also hers are more qualified to do this work than are Mu- ralt's employees. It does not appear from the record that employees represented by Respondent would be entitled to the work under any other criteria used by the Board in determining such disputes, and the uncontradicted testimony is that the electrical work performed to date by Muralt's employees has been quite satisfactory. Accordingly, we determine that Muralt's employees, are entitled to the work in dispute. In making this determination, we are assign- ing the disputed work to the employees of Muralt who are represented by District 50, but not to that Union or its members. Our present determination is limited to the particular controversy which gives rise to this proceeding. 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 proceeding, the National Labor Relations Board hereby makes the following Determination of Dispute. 1. Employees employed by Muralt Electrical Organization, Inc., who are represented by Interna- tional Union of District 50, United Mine Workers of America, are entitled to perform the electrical work in the construction of the King's Department Store project at Sixth Avenue and Memorial Drive, Lancaster, Ohio. 2. International Brotherhood of Electrical Work- ers, Local Union No. 683, AFL-CIO, is not enti- tled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Muralt Electrical Or- ganization, Inc., or Fry, Inc., to assign the above work to its members or to a contractor employing its members. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Brotherhood of Electrical Workers, Local Union No. 683, AFL-CIO, shall notify the Regional Director for Region 9, in writing, whether it will or will not refrain from forcing or requiring Muralt Electrical Organization, Inc., and Fry, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by it, rather than to those represented by International Union of District 50, United Mine Workers of America. Member Fanning, dissenting: I would quash the notice of hearing in this case for the reasons stated in my dissenting opinion in Sarrow-Suburban Electric Co., Inc., 152 NLRB 531. N.L.R.B v. Local 25, International Brotherhood of Electrical Workers, AFL-CIO (Sarrow-Suburban Electric Co.), 383 F 2d 449 (C A. 2)