Local Union 474, Electrical Workers

LOCAL UNION 474, ELECTRICAL WORKERS 221 Local Union No. 474, International Brotherhood of Electrical Workers, AFL-CIO and Teleci, Inc. and Communications Workers of America, AFL-CIO. Case 26-CD-91 July 17, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS received in the State of Tennessee goods and materials valued in excess of $50,000 which were shipped to it directly from points located outside the State of Tennessee and, during this same period, has performed services valued in excess of $50,000 in States other than the State of Tennessee. According- ly, we find that the Employer 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 in this proceeding.' II. THE LABOR ORGANIZATIONS INVOLVED This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Teleci, Inc., herein called the Employer, alleging that Local Union No. 474, International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 474, had violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign the work in dispute to members of Local 474 rather than to employees of the Employer represented by Commu- nications Workers of America, AFL-CIO, herein referred to as CWA. Pursuant to notice, a hearing was held before Hearing Officer I. Harold Koretzky on March 2 and 3, 1972. All parties participated in the hearings and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Employer, Local 474, and CWA in support of their positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds them free from prejudicial error. They are hereby affirmed. The Board has considered the entire record in this proceeding, including the briefs, and hereby makes the following findings: 1. THE EMPLOYER INVOLVED The parties stipulated, and we find, that the Employer is a Tennessee corporation engaged in the business of selling, installing, and maintaining interconnecting private branch exchange telephone systems. During the past year, the Employer has I The parties also stipulated, and we find, that Baddour Wholesale Dry Goods Company, Inc, herein called Baddour, the company with which the Employer contracted to perform the disputed work, is a Tennessee corporation which, during the past 12 months , purchased and received in Memphis, Tennessee, goods and materials valued in excess of $50,000 directly from points located outside the State of Tennessee The parties stipulated, and we find, that Local 474 and CWA are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE DISPUTE A. Background Facts In 1969, the Federal Communications Commission issued the Carterfone decision2 which allowed private individuals or firms to purchase their own telephone equipment and have it "interconnected" by private individuals or firms with an operating telephone company's system, thereby allowing both internal, private telephone communications and access to the lines of an operating telephone company through interconnecting devices. Prior to the Carterfone decision, operating telephone companies had refused to permit private telephone systems to be connected to the operating company's trunklines. The Employer, a private firm, is engaged, at 15 locations throughout the United States, in selling, installing, testing, and maintaining various types of PBX telephone systems. It will not sell or install a system unless it also maintains that system-general- ly for 5-year periods-and several of its 25-28 employees charged with this work, installer-repair- men, are residents at each of the Employer's locations where they are on call 24 hours daily. All of the Employer's installer-repairmen are members of CWA. On October 13, 1971,3 the Employer entered into a contract with Baddour for the sale, installation, testing, and maintenance for 5 years of a Tel-Touch EPABX4 Model No. TE400 switching system and related telephone and circuitry work at Baddour's warehouse complex in Memphis, Tennessee. This work involved the setting up of an EPABX console, running cable between the console and the main 2 13 FCC 2d 420 3 Unless otherwise noted, all events herein occurred during 1971 a An EPABX (electronic private automatic branch exchange) system is a refinement of the basic PBX (private branch exchange) system The record indicates that the terms EPABX , PABX (private automatic branch exchange), and PBX are used interchangeably. 198 NLRB No. 10 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distributing frame (MFD), stripping or fanning each end of the cable, terminating the cable ends at the MFD and the extension stations of the system, testing the entire system, running cable from the MFD to various telephone locations throughout the complex, and, of course, interconnecting the system with that of an operating telephone company, and subsequent maintenance of the system. B. The Work in Dispute The work in dispute encompassed by the instant charges and as defined by stipulation of the parties concerns only "the installation of PBX interconnect systems, whether they be PABX or EPABX or PBX" and regardless of whether such installations are made in "new" construction projects. There is no dispute concerning the testing or maintenance of intercon- nect work. The dispute herein arose when the Employer assigned the work involved to its own employees represented by CWA, rather than to members of Local 474. C. Contentions of the Parties 1. The Employer: The Employer contends that there is reasonable cause to believe that Local 474 has violated Section 8(b)(4)(D) of the Act, and that the Employer's assignment of the disputed work to its employees represented by CWA should be affirmed on the bases of skill, training, and experi- ence, efficiency and economy of operations, area, industry, and company practice, and its collective- bargaining agreement with CWA. Additionally, the Employer argues that the award in this proceeding should encompass "at least all of the employer's operations within the Memphis [Tennessee] area." 2. CWA: CWA, utilizing substantially the same arguments presented by the Employer regarding the assignment of the disputed work, agrees that its members employed by the Employer are entitled to that work. Unlike the Employer, however, CWA argues that the scope of the award should encompass both the Memphis, Tennessee, area and "wherever the geographical jurisdiction of IBEW Local 474 and CWA coincide." 3. Local 474: Local 474 argues that the record is insufficient to support a finding that it engaged in any conduct that would amount to an unfair labor practice within the meaning of Section 8(b)(4)(D). It also contends that the work in dispute should; be awarded to its members on the bases of its Interna- tional constitution, its collective-bargaining agree- ment with the "Mid-South Communications Con- structors Association of Memphis, Tennessee," area and industry practice, experience, skill, and "a comprehensive apprenticeship program for the skills required." D. Applicability of the Statute Before the Board may proceed to a determination of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The record shows that beginning in late November, the Employer sent installer-repairmen Yearwood and Jones to the Baddour jobsite on several occasions to ascertain the progress of the warehouse project under construction and thereby determine when these employees would be able to begin installing the EPABX system. They explained the purpose of their visits to Local 474 Job Steward Chalk who, on each occasion, informed them, in substance, that they would not be able to perform the work until the matter was cleared with Byars, Local 474's business agent. They received this same treatment on their December 8 jobsite visit even though construction then had progressed to the point where they could have begun "pulling cable." They again went to the jobsite about December 15, at which time Chalk informed them that they would not be able to perform the work in issue because it was IBEW work. Around Christmas time, Yearwood and Jones returned to the jobsite where they met Local 474's assistant business agent, Hearne, who informed them that "IBEW had ....Jurisdiction under their new [constitution] to do . . . communications work [on new construction] in the Memphis area," and that "this same type of work" could be performed by several employers who were parties to a bargaining agreement between Local 474 and the Mid-South Contractors Association of Memphis, Tennessee. Hearne discounted Yearwood's observation that both IBEW AND CWA were "AFL-CIO" by stating that such was immaterial because "under our Constitution it's our work." In response to Year- wood's question "what if we do [the work]," Hearne stated that "We will have to picket." Hearne then telephoned Baddour and spoke with Baddour's personnel manager whom he advised, inter alia, that the installation work fell within IBEW's jurisdiction, and that "he [Hearne] didn't want trouble out there and would hate to see pickets go up on the job." Hearne then spoke by telephone with CWA repre- sentative Walker, to whom he reiterated IBEW's jurisdictional claim and further stated "if they [apparently Yearwood and Jones] went to work, they [Local 474] were going to shut the job down." Yearwood and Jones thereupon left the jobsite and did not return until January 18, 1972, when they LOCAL UNION 474, ELECTRICAL WORKERS began performing the work in issue without further incident. Local 474 argues that the foregoing testimonial evidence regarding the threats is "incredible" be- cause that testimony was denied by its witnesses, and that even if that testimony is credible, the threats were isolated and, therefore, fail to establish an 8(b)(4)(D) violation. We do not agree that such threats, made within the context of Section 8(b)(4)(D) of the Act, are isolated. Moreover, in a jurisdictional dispute context, the Board is not charged with finding that a violation in fact did occur. It is required to find only that there is reasonable cause to believe that there has been a violation.5 Based on the foregoing testimony, and without ruling on the credibility of the testimony in issue,6 we are satisfied that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. In addition, the parties stipulated that they have not reached an agreement upon methods for the voluntary adjustment of this dispute, and that the dispute had not been adjusted and presently exists, Accordingly, we conclude, on the basis of the entire record, 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 us for determina- tion under Section 10(k) of the Act. E. Merits of the Dispute As stated in the J. A. Jones case,7 we shall, pursuant to the Supreme Court's C.B.S. decision,8 determine in each case presented for resolution under Section 10(k) of the Act the appropriate assignment of the disputed work only after taking into account the evidence supporting the claims of the parties and balancing all relevant factors. 1. Certification, collective-bargaining agreements, and International constitutions The parties stipulated at the hearing that neither of the labor organizations involved herein have been 5 Local Union No 134, International Brotherhood of Electrical Workers, AFL-CIO (International Telephone & Telegraph Corporation Communications Equipment and Systems Division), 191 NLRB No 122, Local 138, 138A, 138B, 138C, and 138D, International Union of Operating Engineers, AFL-CIO (Cafasso Lathing & Plastering Inc ), l49 NLRB 156 6 Local Union No 134, International Brotherhood of Electrical Workers, AFL-CIO (International Telephone & Telegraph Corp), supra 7 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 8 N L R B v Radio & Television Broadcast Engineers Unions, Local 1212, [International Broadcasting System 1, 364 U S 573' 9 Local 474 contends that the constitution of its International Union covers the work in question , and that this factor should weigh in its favor because CWA's constitution is silent on this point Without passing on the relevance of the constitutional provisos , we do not regard Local 474's International constitution as covering this work The portion of its 223 certified by the Board, and that there is no Board certification covering the disputed work. Local 474 contends, however, that its bargaining agreement with Mid-South Communications Contractors Asso- ciation of Memphis, Tennessee, covers the work in issue . However, the Employer is not a member of the Mid-South Association or party to that agreement, and is not, and never has been, party to any bargaining agreement with Local 474 or any associa- tion which maintains a bargaining relationship with Local 474. The Employer is party to a current, and second consecutive, bargaining agreement with CWA. While this agreement does not describe the type of work covered therein, it nevertheless includes the job classification of "Installer-Repairman," which covers the classification of employees who have been assigned the disputed work and who have performed it in the past.9 2. Experience, training, and skill Local 474 contends that CWA members "do not by experience, training or apprenticeship possess the skill of the IBEW members" to perform the disputed work because its members have installed, main- tained, and repaired "private telephone systems" long before, as well as subsequent to, the Carterfone decision, while "Communication Workers only got into the disputed work" since that decision issued in 1969. It further contends that these factors, together with the separate hiring hall listing of its journeymen technicians qualified in PBX installation work, demonstrate that its members are as qualified as CWA's to perform the work. The Carterfone decision itself makes self-evident the fact that the interconnect work in dispute could not have arisen prior to the decision. Moreover, there is no record evidence to support Local 474's generalization that its members are better qualified to perform the work than are members of CWA, or to indicate that the CWA members employed by the Employer to perform the work are any less skilled than any member of Local 474. In addition, the presence of an apprenticeship training program and constitution cited by Local 474 to support its claim (sec 6, art 28) provides that the divisions and classifications of "Communications Workers" shall include "(a) Radio, television and recording engineers, technicians, operators, installers, inspectors , maintenance and repairmen and service men, engaged in the application of electricity to the transmission and transference of voice, sound and vision for commercial, educational and entertainment purposes, excepting employees of common carver compa- nies They shall have jurisdiction over the following work The installation, operation, inspection, maintenance, repair and service of radio, television, recording, voice, sound and vision production and reproduction apparatus, equipment and appliances used for domestic, commercial , educational and entertainment purposes " Sec 6(b) of art 28 pertains to "Telephone, telegraph, and other workers, employed by common carver communications companies ," which companies are not involved in this dispute 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a separate hiring hall listing do not negate the qualifications of the Employer's 25-28 nationwide installer-repairmen generally, or of the 2 involved in the instant dispute, since these employees have an average of 8-10 years' experience in telephony including PBX installation work which they obtained with operating telephone companies, and, with one exception, were hired only if they were fully qualified to perform the requisite telephony work. Therefore, the factors of skill, training, and experience do not favor Local 474's claim to the work. 3. The Employer's preferences; employer, area, and industry practice The Employer has used only CWA members to perform the work in dispute and favors an award to its employees who are members of CWA. IBEW offered evidence that its members employed by an area communications contractor had performed PBX interconnect installation work in the Memphis area on three occasions between October 1970 and January 1972. The record shows, however, that this contractor is but one of eight signatories to Local 474's Mid-South Communications Contractors Asso- ciation agreement , that those three PBX installations constituted but 10 percent of that contractor's sales during that period, and that that contractor never installed the TE400 EPABX system involved herein. The Employer, on the other hand , is engaged only in telephony work, is capable of installing several different types of systems and, within the past year, has installed in the Memphis, Tennessee , area, at least four interconnect systems of a similar, if not identical, type as involved herein, with its employees represented by CWA. Moreover, one of those installations took place in a facility undergoing construction and with the full knowledge of Local 474 whose members were employed as part of the construction work force. The nationwide practice is to assign the disputed work to people represented by CWA. The record shows in this regard that it is the Employer's practice, on a nationwide basis, to assign this work to its employees represented by CWA. The record also shows that PBX equipment is installed by several of the Employer's nationwide competitors , and that with minor exceptions, CWA represents, on a nationwide basis, such employees of those competi- tors who perform the work in dispute.10 It appears, therefore, that Employer preference and practice, and area and industry practice, favor assignment of the work in dispute to employees represented by CWA. 4. Efficiency, economy, and flexibility of operations Local 474 seeks only the installation of the EPABX system. The Employer's sales agreement with Bad- dour, however, includes the Employer's standard provision that it will perform necessary maintenance work for a period of 5 years. That maintenance work, moreover, will be performed by resident installer- repairmen who are subject to call 24 hours a day. Consequently, not only does such maintenance militate in favor of an employer's assignment,ll but an assignment other than as made by the Employer would increase its operating costs and affect the efficiency, economy, and flexibility of its operation. Conclusion Having considered all pertinent factors herein, we conclude that employees represented by CWA are entitled to perform the work in dispute. In making this determination, we are assigning the disputed work to the employees of Teleci, Inc., who are represented by Communications Workers of Ameri- ca, AFL-CIO, but not to that Union or its members. Our present determination is limited to the particular controversy which gave 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 Dis- pute: 1. Employees of Teleci, Inc., who currently are represented by Communications Workers of Ameri- ca, AFL-CIO, are entitled to perform the work of installing PBX interconnect systems, whether such systems by PABX, EPABX, or PBX, and regardless of whether such installations are made in new construction projects , on the Baddour project in Memphis, Tennessee. 2. Local Union No. 474, International Brother- hood of Electrical Workers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Teleci , Inc., to assign the above work to individuals represented by Local Union No. 474, International Brotherhood of Elec- trical Workers, AFL-CIO. 10 See, e g , Local Union No 134, International Brotherhood of Electrical 11 See, e g , Radio-Television -Sound Technicians Local Union 1139, Workers, AFL-CIO (ITT, Communications Equipment and Systems Division), International Brotherhood of Electrical Workers, AFL-CIO (Motorola 191 NLRB No 122 Communications and Electronics, Inc), 180 NLRB 997. LOCAL UNION 474, ELECTRICAL WORKERS 225 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 474, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 26, in writing, whether or not it will refrain from forcing or requiring Teleci, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to individuals represented by Local Union No. 474, International Brotherhood of Electrical Workers, AFL-CIO, rather than to em- ployees of Teleci, Inc., represented by Communica- tions Workers of America, AFL-CIO.