Local 3, Electrical Workers

380- DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO and Madison Square Garden Center, Inc. and Theatrical Protec- tive Union No. 1 of International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada Theatrical Protective Union No. 1 of International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada and Madison Square Garden Center, Inc. and Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO. Cases 2-CD-431 and 2-CD-432 July 24, 1972 DECISION AND DETERMINATION OF DISPUTE affirmed. The Board has considered the briefs of the parties and the entire record in this proceeding and hereby makes the following findings: 1. THE BUSINESS OF THE COMPANY Madison Square Garden is a Michigan corporation with its principal office located in New York, New York. It is engaged in the operation of entertainment facilities for the performance of shows and events. It operates and presents shows as well as owns and operates the Arena, Felt Forum, and Rotunda. Its gross revenues from these operations exceed $1 million yearly and it annually purchases supplies and equipment in excess of $50,000 directly from suppli- ers located outside the State. The parties stipulated, and we find, that the Garden is engaged in interstate commerce within the meaning of the Act. We further find that it will effectuate the purposes of the Act to assert jurisdiction herein. BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing the filing of charges by Madison Square Garden Center, Inc., herein called the Garden or the Employer, against Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 3, and Theatrical Protective Union No. 1 of International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, herein called Local 1, alleging that both unions had violated Section 8(b)(4)(i) and (ii)(D) of the Act, by engaging in certain proscribed activity with an object of forcing the Garden to assign the work in dispute to Local 31 rather than to Local 1, or to Local 12 rather than to Local 3. Pursuant to an order consolidating cases and a notice of hearing, a hearing was held before Hearing Officer Mary W. Taylor on January 5, 6, 24, and 25, and February 10, 1972. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Garden, Local 3, and Local 1 all filed briefs. 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 made by the Hearing Officer at the hearing and finds that they are free of prejudicial error. The rulings are hereby 1 Case 2-CD-431. 2 Case 2-CD-432. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 1 and Local 3 are labor organizations within the meaning of the Act. III. THE DISPUTE The notice of hearing in Case 2-CD-431 states: "The dispute concerns the assignment of a portion of the work relating to the installation and maintenance in operation of television lighting equipment at Madison Square Garden in New York, New York." Although television was involved in Case 2-CD-431 the disputed work actually involves the installation, operation, and maintenance of all types of portable lighting equipment brought in from outside the Garden to supplement the Garden equipment for a traveling or theatrical show, and which is hung off the stage to illuminate the performance or hung over an area which Local 1 considers part of the stage and which Local 3 considers not to be a part of the stage. The dispute in Case 2-CD-432 involves the installa- tion, operation, and maintenance of extra portable sound and projection equipment required for shows that can be characterized as trade shows but which have theatrical elements, in this case, the Pontiac show. A. The Background Facts The controversies resulting from the assignment of the disputed work date back to the 1940's. It appears that at or about that time performances in the old Garden such as ice shows necessitated the use of 198 NLRB No. 61 LOCAL 3, ELECTRICAL WORKERS 381 extra lighting equipment. Traveling Hurok shows, such as the Bolshoi Ballet came to the Garden with their own lighting equipment which was installed and maintained by members of Local 1.3 While the types of lighting and sound equipment vary with the arrival of each new show, the record reveals that there are many instances in which the work is not in dispute. There is no dispute over the installation, operation, and maintenance of the lighting fixtures and sound equipment owned by the Garden and a permanent part of its inventory. There is no dispute over work of any electrical nature required for a sporting event, sound equipment for shows considered trade shows by both unions, and sound equipment for contemporary concerts (except that which is placed on the stage). All such work is done by the Garden's crew of regular employees who are represented by Local 3. Nor is there any dispute over portable lighting fixtures that are hung directly over the stage for a theatrical event, spotlights, sound equipment on the stage, or sound equipment which is hung over the stage for a traveling show where both Unions consider the show theatrical and where both Unions can agree on what constitutes the stage. Local I does such work. Thus, a dispute arises when extra portable offstage lighting is used to illuminate the stage for a straight theatrical production. In this situation, Local 1 claims all extra lighting work used to illuminate the stage or area of performance. Local 3, however, contends the stage extends only to the proscenium arch and claims the lighting work for any other area. The dispute concerning the Miss Black America Beauty Pagent would fall in this category. A dispute also arises regarding the operation of extra portable sound equipment for traveling semitheatrical shows such as the Pontiac Automobile show. Since the time the disputes first arose between the two Unions, the parties have at times been able to work out ad hoc arrangements. In some instances, however, disputes have resulted in the nonuse of certain equipment and in some instances the cancellation of shows. In 1968, a part of a dispute relating to offstage lighting was submitted to the AFL-CIO Internal Disputes Plan for binding arbitration before David Cole. The arbitrator refused to proceed, however, because the two Unions failed to agree on a 3 Most such shows are referred to as "yellow card" shows In essence, a "yellow card" show is one that is put together in one city and which travels to others with a traveling crew consisting of a head electrician, head carpenter, head propertyman , and a number of assistants These men belong to IATSE, Local I's parent organization , which issues a yellow form, consisting of three parts , called the "yellow card," which indicates that the show travels with an IATSE contract and presumably is a theatrical-type production The head carpenter consults with the show's producer and/or manager and together they determine the number of additional people the definition of the disputed work. Since that time, the disputed work has been assigned to the Unions on a 50-50 basis with the understanding that no precedent would be established by this practice. In August 1971, extra sound and projection equipment had to be installed for the Pontiac show which was scheduled for August 23 in the Felt Forum. The work was initially assigned to Local 3 under the mistaken belief that the Pontiac show was not a yellow card show. When the Garden sought to alter the assignment, Local 3 claimed the work on the ground that the Pontiac show was a trade show. Local I claimed the work on grounds it was a "yellow card" show and had theatrical entertainment as well. The Garden sought to avert cancellation of the show by offering to employ a full crew from each Union. Local 3 accepted this arrangement. Local 1 stated it would be acceptable only if its members did 100 percent of the physical work and Local 3 members stood by, and that if its members did not do all the work there would be no show. As a result of Local l's refusal to accept the settlement proposed by the Garden the show was canceled, and the present unfair labor practice charges were filed. The Miss Black America Beauty Pageant was scheduled to be held in the Felt Forum on August 27, 1971, and was to have extra lighting. Although not a "yellow card" (traveling) show, extra lighting had to be brought in because the show was to be televised. Since this type of extra lighting had caused disputes before, the Garden asked Local 3 that the 50-50 past practice be adhered to. James O'Hara, Local 3's assistant business agent, replied that Local 3 would do all the work, or there would be no show. This led to the filing of the charge in case 2-CD-431. Judge John M. Cannella of the United States District Court for the Southern District of New York granted the temporary restraining order requested by the Region- al Director for Region 2. The show went on, with the lighting being installed on a 50-50 basis. B. Contentions of the Parties Local 3 contends the disputed work belongs to its members because of its contractual relationship with the Garden and because its members have done the work in the past. While not relying on area practice, Local 3 nevertheless takes the position that area practice will support an award to its members. show will need and who will have to be recruited at the next city This information is put on the card and a portion of it is forwarded to the IATSE local union's business manager in the city in which the show is next scheduled to appear Another section of the yellow card is sent to the head carpenter, also an IATSE member, covering the particular theater house in the location in which the show will play The head carpenter and business manager then arrange to recruit the necessary local IATSE members and have them ready for work when the show arrives 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local I contends its members are entitled to the work in dispute on the basis of area practice and its collective-bargaining agreement with the Garden. Additionally, it contends it is entitled to the disputed work because of the type of equipment involved and because it has traditionally represented employees doing theatrical work. With regard to the offstage lighting, Local 1, unlike Local 3, contends that the stage is the area of performance, and not limited to the arch, as contended by Local 3. The Garden takes a neutral position, not favoring either Union over the other. C. Applicability of the Statute The charges allege violations of Section 8(b)(4)(D) of the Act and the record evidence set forth above furnishes reasonable cause to believe that Local 1 and Local 3 have restrained and coerced Madison Square Garden for the purpose of forcing assignment of the disputed work to their respective members. Additionally, the record indicates that the parties have been unable to voluntarily adjust the dispute. Accordingly, we find that there is reasonable cause to believe that violations of Section 8(b)(4)(D) have occurred and that the dispute is properly before the Board for determination under Section 10(k) of the Act. D. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to and balancing all relevant factors.4 1. Certification and collective bargaining The evidence indicates there is no Board certifica- tion in either case relative to the disputed work. Madison Square Garden has had collective-bar- gaining agreements with both Unions for a number of years. The current Local 3 contract speaks of construction work but does not purport to delineate the electricians' work jurisdiction except with respect to trade shows. In pertinent part, the contract states: ARTICLE Construction Construction work, for purposes of this con- tract, is restricted to the installation of electrical work in what are commonly called "trade shows" which occupy the Madison Square Garden Center Rotunda. It is not intended to cover arena 4 N.L. R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia work which is necessary for the production of such shows as Ice Follies, Circus, Horse Show and similar Center shows. Local l's contract provides in pertinent part: Scope and Jurisdiction: In general, the scope of this Agreement and the jurisdiction of Union hereunder shall extend to all carpentry, electrical, property and other related work recognized as traditionally falling within the jurisdiction of Union performed within MADISON SQUARE GARDEN CENTER (herein called the "Center") in connection with all theatrical-type productions, including "taking in" and "taking out," handling, assembling and dismantling of any and all equipment, including spotlights used in connec- tion with any theatrical-type productions, includ- ing rehearsals. For the purpose of this Agreement, the Center shall include, without limitation, the Arena, the Felt Forum and the Rotunda. Article 19 of the contract provides: Yellow Card- The Yellow Card will be strictly adhered to and the full complement of men shall be employed at all times in taking in, putting on, rehearsing, working and taking out of an attrac- tion. Article 27 states: Work Performance: Employer agrees that whenever work covered by this Agreement is to be performed within its premises, whether such work is to be done for the Employer itself or for any lessee within its premises, such work shall be recognized by Employer as coming within the exclusive jurisdiction of Union and shall be performed only by employees represented by Union. Employer further agrees that it will endeavor to have lessees agree that such work will be done by employees of Employer. Local 3 does not appear to argue seriously that its contract clearly covers the disputed work as it concedes in its brief that its contracts with the Garden have purported to delineate the jurisdiction of electricians only with regards to trade shows. The Local 1 contract, on the other hand, clearly covers carpentry, electrical, property, and related work in theatrical-type productions. While the contract does not precisely define what are theatrical types, it is quite specific in assigning to Local 1 members work traditionally done by that Union in theatrical productions, and it states "yellow card" requirements will be met. We are of the view that on balance the Local 1 contract makes a stronger claim for the disputed work than does the Local 3 contract.5 Broadcasting System], 364 U.S. 573. 5 In this connection , Local I further contends that there are instances in (Continued) LOCAL 3, ELECTRICAL WORKERS 2. Company, industry, and area practice When disputes have arisen in the past, Madison Square Garden, the Employer, has worked out ad hoc agreements with the Unions and thus had no consistent traditional practice favoring either Union. It has, at least since 1968, made assignments of disputed work on a 50-50 basis with the understand- ing on its part and on the part of the Unions that no precedent would be set. Additionally, the Employer takes a neutral position, favoring neither Union over the other. Evidence regarding industry and area practice is inconclusive and does not appear to favor either Union. 3. Skills, efficiency, and economy of operations All parties agree that the work in dispute can be done by employees represented by either Union regardless of the type of equipment involved. There is no evidence in the record from which it can be concluded that efficiency and economy of operations will be promoted or impeded by the award of the disputed work to one Union, as opposed to the other. Conclusions Upon the record as a whole, and after full consideration of all relevant factors, we believe that the employees represented by Local 1 are entitled to perform the work in dispute. We note that there is some support in the record for each Union's position based on the Employer's practice and area practice. We also note that employees represented by either Union possess the necessary skills to perform the disputed work and that the Employer has taken no position on which Union should get the work. With many of the factors on which we normally rely being inconclusive in this case, we shall give substantial weight to the collective-bargaining agreement be- tween Local 1 and the Garden, which by its terms covers the disputed work. Moreover, the nature of the work involved in the disputes is essentially theatrical and more likely performed by members of a traditional theatrical union such as Local 1 rather than by members of an essentially construction and maintenance ' union such as Local 3. In making this award, we are assigning the work to employees represented by Local 1 rather than to that organiza- tion itself or its members. which the producer of a traveling show will own the extra portable equipment and will already be under contract with it to hire Local I members to handle the equipment There is also evidence that Richard Donopria, the Garden's building superintendent (referring to the Pontiac show) construed the agreement with Local I as requiring that "anything Scope of Award 383 As we read the briefs of the Garden and Local I they request that the Board issue a broad award, contending essentially that such is necessary to avoid disruption of future events to take place in the Garden. There is precedent for a determination broader in scope than the site actually involved where the record evidence indicates a likelihood that similar disputes will occur between the same parties.6 The present record reveals that, although the nature of events at the Garden changes from time to time, for a number of years a jurisdictional question has arisen between the parties regarding the operation of extra portable lighting to illuminate the stage or area of performance and the extra portable sound equipment. While in some instances disruption of events has been avoided by the parties' ad hoc arrangements, the record reveals other instances wherein the disputes have necessitated the nonuse of certain equipment, or the cancellation of events. Additionally, Local 3 states in its brief that it has not recognized the yellow card, the basis for some IATSE jurisdictional claims, at any location where Local 3 has a collective-bargaining agreement. These facts, and the inability of the two Unions to agree on what constitutes the stage for theatrical events or which Union should handle extra portable equip- ment for semitheatrical shows, in our view, demon- strate a strong probability that similar disputes will occur in the future over the handling of similar equipment for similar events. Accordingly, we hold that this determination applies not only to the performances out of which the present dispute arose, but also to all similar work for theatrical-type and semitheatrical productions which come to the Gar- den. 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 represented by Theatrical Protec- tive Union No. 1 of International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada are entitled to perform the work of handling the installation, operation, and maintenance of portable traveling with this show that had a yellow card is work done by Local I " 6 See Lathers Union Local 104 (The Blaine Petty Company), 186 NLRB No 70 International Union of Operating Engineers, Local 66, AFL-CIO (Frank P Badolato & Son), 135 NLRB 1392, 1401 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lighting equipment of any type or intensity brought in from outside the Garden to supplement the Garden equipment, hung off the stage to illuminate the stage,7 and the installation, operation, and maintenance of extra portable sound and projection equipment for theatrical productions and theatrical elements of semitheatrical productions at the Em- ployer's jobsite at Madison Square Garden, 4 Pennsylvania Plaza, New York, New York. 2. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the above work to its members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 2, in writing, whether it will refrain from forcing or requiring the Employer , by means pro- scribed by Section 8(b)(4)(D), to award the work in dispute to its members rather than to employees represented by Local 1. 7 For purposes of this Determination of Dispute, we find the area of proscenium arch performance constitutes the stage and that such area is not limited by the