IBEW, Local 3

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 3, International Brotherhood of Electrical Work- ers, AFL-CIO and Hylan Electric Company, Inc. and Local 363, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 29-CD- 136 March 20, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Hylan Electric Company, Inc., hereinafter called the Company, alleging that Local 3, International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 3, violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Richard J. Roth on November 8, 1972. All parties appearing were afforded full opportunity to be heard, to examine and to cross- examine witnesses, and to adduce evidence bearing upon the issues. Thereafter, Respondent and the Charging Party 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE COMPANY The Company is a New York corporation engaged in all aspects of electrical work, including the buying, selling, renting, installing, repairing, and servicing of electric lights, appliances, fixtures and implements, motors and machines. During the 12 months preced- ing the hearing, the Company received electrical supplies valued at $60,000 in direct shipments from out-of-State suppliers. We find that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The Respondent, Local 3, International Brother- hood of Electrical Workers, AFL-CIO, and Local 363, International Brotherhood of Teamsters, Chauf- i On December 11, 1972, Respondent filed a motion seeking to quash the Notice of Hearing issued in the present case on the grounds that the issue feurs, Warehousemen and Helpers of America (herein Local 363), are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Malone-Victoria Corporation has a contract for the construction of three garden apartment buildings at a site located at 101-111-121 Lyman Avenue, Staten Island, New York. There is only one entrance to the site at which all deliveries and employees enter for all employers working on the project. In early June 1972 Malone-Victoria employed Hylan Electric as a subcontractor to perform electrical work on the apartments. On June 30, 1972, members of Local 3 picketed the entrance with signs stating that area wage standards were not being maintained in connection with the construction. Koziol, president of Malone-Victoria who was present at the time, asked that a Local 3 delegate be summoned. When the Local 3 business representative, Tacvor, arrived, Koziol inquired about the picketing and informed him there were no electricians on the job. Tacvor responded by informing Koziol that he should select his subcontractors only from Local 3 contractors, and that if he failed to do so he would have "trouble" on the job. Tacvor then provided Koziol with the names of two Local 3 contractors, and removed the pickets. Vaccaro, president of Hylan, met with a Local 3 delegate at Local 3's office in July 1972 but declined to enter into any contract with that Union on the grounds that the Company had a current contract with Local 363, International Brotherhood of Teamsters, representative of its electricians. Thereafter, on August 18, 1972, Tacvor went to the construction site and informed Koziol there would be "a problem" at the site due to Hylan's presence as a subcontractor. Local 3 began picketing the Lyman Avenue site on August 21, 1972, and the pickets posted caused other laborers and mechanics to refrain from entering or working at the Lyman Avenue project. B. The Work in Dispute The work in dispute involves the installation of electrical wiring and other electrical equipment at a garden apartment construction site located at 101-111-121 Lyman Avenue , Staten Island, New York. presented is moot, and that no jurisdictional dispute exists We hereby deny that motion as lacking in merit 202 NLRB No. 82 IBEW, LOCAL 3 C. The Contentions of the Parties Respondent Local 3 contends that no jurisdictional dispute exists in the present case since it has picketed the Lyman Avenue site with signs which merely seek to assure that area wage standards will be observed on the apartment project. In this regard Respondent emphasizes that its picket signs did not identify Hylan Electric as the electrical contractor working at the Lyman Avenue site. The Charging Party contends that a jurisdictional dispute clearly exists in view of the demands made by Tacvor, business representative of Local 3, upon the general contractor that a subcontractor utilizing employees represented by Local 3 perform electrical work at the Lyman Avenue construction site, and the threats by Local 3 that unless such a subcontractor was used, there would be "problems" or "trouble" at the project. D. Applicability of the Statute Before the Board may proceed to the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. We find no merit in the contention of Respondent that no jurisdictional dispute exists because it was merely seeking to preserve prevailing area standards in insisting that a subcontractor utilizing Local 3 employees be assigned the electrical installation work by the general contractor Victoria-Malone.2 The demand by Respondent's business agent, Tacvor, upon Koziol, president of the general contractor, that a subcontractor utilizing employees represented by Local 3 be assigned the electrical installation work at the Lyman Avenue site, and the threat by Tacvor that otherwise there was going to be trouble on the job, negative the contention that Respondent was merely seeking to preserve wage standards and show a definite attempt to compel an assignment of the electrical work at the Lyman Avenue project to Local 3. Moreover, the record contains no evidence that the parties have agreed upon any method for the voluntary adjustment of work disputes. Accordingly, 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 determination under Section 10(k) of the Act. 2 The business agent of Local 3 admitted readily on cross-examination that he did not know what wage rate was being paid the electricians employed by Hylan at the Lyman Avenue construction site 3 N L R B v Radio & Television Broadcast Engineers Union, Local 1212, 545 E. 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 various factors.3 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience reached by balancing those factors involved in a particular case.4 1. Collective-bargaining agreement Hylan Electric Company employs electricians who are members of Local 363 and has a current contract with that labor organization through an employer association. It employs no electricians who are members of Local 3 and has no contract with that Union. 2. Company and industry practice According to William Vaccaro, president of Hylan Electric, the nature of the work involved at the Lyman Avenue project is the installation of electric wiring, feeders and control systems, service equip- ment, and fixtures to comprise a complete electrical system. He testified that electricians capable of such work in the Staten Island area generally are those who have completed a recognized 5-year apprentice- ship program. Vaccaro further testified that, al- though electricians in Local 3 may also meet this requirement, he regularly assigns such complete electrical installation jobs to Hylan's own electricians represented by Local 363, because they have been performing such duties in close association with himself for about 12 years on Staten Island. In this regard Vaccaro testified that he is a licensed master electrician and that he normally utilizes no interme- diate job superintendents in performing electrical installation work, relying instead upon the dedication and industry of his employees and his own ability to scrutinize their work. The record contains no evidence that members of Local 3 possess any greater skills or efficiency in performing electrical installa- tion work than Hylan's electricians functioning under Vaccaro. 3. Economy and efficiency The record shows that the work involved at the Lyman Avenue garden apartment project, namely the installation of complete electrical systems includ- ing necessary equipment, is a task which is by industry and trade practice performed by journey- International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U S 573 4 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men electricians who have completed a 5-year apprenticeship program. Vaccaro, president of Hylan Electric, contends that his own qualifications as a licensed master electrician enabling him to check his own projects daily without the need of intermediate superintendents and a working relationship between himself and electricians who have worked with him for from 10 1/2 to 12 years assure a production factor which is more favorable than he could expect to achieve utilizing Local 3 members at the Lyman Avenue location. Conclusions Upon consideration of all the pertinent factors in this case, we shall affirm Hylan's assignment of the disputed work to its own electricians represented by Local 363. In doing so in a situation where electricians of Local 363 and Local 3 have equally qualified journeymen electricians under trade ap- prenticeship programs, we give weight to the Compa- ny's already established collective-bargaining agree- ment with Local 363 as representative of its journey- man electricians, to the long employment relation- ship existing between Vaccaro and a number of electricians who have worked under his personal direction as a master electrician on a number of Staten Island projects over a period of from 10 to 12 years, and to the economy and efficiency inherent in Vaccaro's own ability to manage his - electrical contracting without intermediate superintendents. We find in the present record no reason to disturb the Company's assignment of the disputed work to its own journeyman electricians.5 In making this determination, we are assigning the disputed work to the employees of the Company who are represented by Local 363 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 Hylan Electric Company, Inc., who are currently represented by Local 363, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, are entitled to perform the work of installing electrical wiring and other electrical equipment at a construction site located at 101-111-121, Lyman Avenue, Staten Island, New York. 2. Local' 3, International Brotherhood of Electri- cal Workers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Hylan Electric Company, Inc., to assign the above-described electrical work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 3, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 29, in writing, whether or not it will refrain from forcing or requiring Hylan Electric Company, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Local 3, International Brotherhood of Electrical Workers, AFL-CIO, rather than to employees represented by Local 363, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. 5 Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Todd Electric Corp), 158 NLRB 410