IBEW, Local Union No. 3

722 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. I of International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada. Case 2-CD-431 March 23, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 22, 1973, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, New York, New York, its officers , agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge. This proceed- ing, with all the parties represented, was heard on December 6, 1972, in New York City, New York, on the complaint of the General Counsel issued on October 26, 1972,1 and the answer of Local Union No 3, International Brotherhood of Electrical Workers, AFL-CIO, herein i The complaint is based on a charge filed on August 25, 1971, a copy of which was duly served on the Respondent by registered mail on the same day 2 Sec 8(b)(4), insofar as relevant, makes it an unfair labor practice for a labor organization or its agents (u) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where an object thereof is called the Respondent or Local 3. Both pleadings were subsequently amended at the hearing. In issue is the question whether the Respondent, in violation of Section 8(b)(4)(iii)(D) of the National Labor Relations Act, as amended,2 threatened, coerced, or restrained Madison Square Garden Center, Inc., herein called the Garden or the Company, to compel the assignment of certain disputed work to employees who were members of, or were represented by, the Respondent rather than to employees who were members of, or were represented by, Theatrical Protective Union No. I of International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, herein called Local 1. At the close of the hearing, the parties waived oral argument. Thereafter, only the Respondent filed a brief in support of its position. Upon the entire record, including the record in the Section 10(k) proceeding discussed below, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY The Garden, a Michigan corporation, with its principal office in New York City, New York, is engaged at that location in the operation of entertainment facilities for the performance of theatrical shows, sports, and other events. From the conduct of these operations the Company annually derives gross revenue in excess of $1 million. In the course and conduct of its business, it also annually purchases equipment and supplies valued in excess of $50,000 directly from firms located outside the State. It is admitted, and I find, that the Garden is a person and an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(1), (2), (6), and (7) and Section 8(b)(4) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is clear that the Respondent and Local 1 are labor organizations within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; The Question Presented The instant case arises out of a jurisdictional dispute between the Respondent, Local 3, and Local 1 over the performance of certain work at the Garden. Following a hearing pursuant to Section 10(k) of the Act,3 the Board on (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class, rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work 3 Sec 10(k) provides, in relevant part, that "[w lhenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 8(b), the Board is empowered and directed to 202 NLRB No. 106 IBEW, LOCAL UNION NO 3 723 July 24, 1972, issued its Decision and Determination of Dispute,4 in which it awarded the disputed works to employees represented by Local I and held that the Respondent, Local 3, was "not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require the [Garden] to assign the above work to its members or employees it represents." The Determination of Dispute further provided that "[w]ithin 10 days of this Decision and Determination of Dispute . . . [Local 3] shall notify the Regional Director for Region 2, in writing, whether it will refrain from forcing or requiring the [Garden], by means proscribed by Section 8(b)(4)(D), to award the work in dispute to its members rather than to employees represented by Local 1." Thereafter, on September 5, 1972, the Garden filed with the Board a request for clarification of the Decision and Determination of Dispute concerning certain sound equipment work. On September 22, 1972, the Board issued an Order granting the motion for clarification in which it specifically refused to construe its Decision and Determi- nation of Dispute as awarding the work in question to Local 3 and expressly awarded such work to Local 1.6 On October 18, 1972, the Board also denied the Respondent's related motion made on September 19, 1972, to reopen the hearing to receive evidence with respect to the subject matter of Garden's above-mentioned clarification motion. The Respondent concededly refuses to serve upon the Regional Director the notice required by the Determina- tion of Dispute that it will refrain from resorting to means prohibited by Section 8(b)(4)(D) to force the Respondent to assign the disputed work to its members. It justifies its refusal on the ground that this procedure is necessary in order to preserve its position to challenge the validity of the jurisdictional award before the Board and the courts. Although no fault can be found with the Respondent's procedure, its further argument that the Board may not rely on the Respondent's noncompliance to establish a violation of Section 8(b)(4)(D) is, however, a nonsequitur. Actually, it is not the failure to serve the notice of intention hear and determine the dispute out of which such unfair labor practice shall have arisen 1 198 NLRB No 61 5 The particular work awarded to Local I and described in the Determination of Dispute consists of handling the installation, operation, and maintenance of portable 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 Employer's jobsite at Madison Square Garden, 4 Pennsylvania Plaza, New York, New York 7 For purposes of this Determination of Dispute, the area of performance constitutes the stage and such area is not limited by the proscenium arch 6 The clarification order stated the Board is unwilling to hold that its Decision and Determina- tion of Dispute may be construed as awarding the work of installing, adjusting, moving during the performance and removing microphones supplied from the outside for rock and roll concerts, where such equipment is associated with the musical instruments on the stage, to employees represented by Local 3 IT is ORDERED that employees represented by [Local I ] are entitled to perform the work of installing, placing, adjusting, moving during the performance and removing microphones supplied from the outside for rock and roll concerts when such sound equipment is associated with to comply that is alleged to be an unfair labor practice, but, rather, it is the Respondent's alleged prior coercive conduct to compel the assignment of the disputed work to the employees it represented that constitutes the violation.? Compliance with the Board's determination results in a dismissal of the charges.8 Since it is settled law that the Administrative Law Judge is bound by the Board's award, the Respondent was not permitted to relitigate the question of the assignment of the disputed work or the validity of the Board's award, as subsequently clarified. Accordingly, evidence not shown to have been unavailable during the Section 10(k) proceeding, which the Respondent offered to prove that it was entitled to that work and that the award was erroneous, was rejected. Consistent with these rulings, I quashed, on the Garden's motion, a subpoena duces tecum which the Respondent had served on it .9 The only issue thus left to be resolved in this case is whether the Respondent threatened, coerced, or restrained the Garden to compel an assignment of the disputed work to employees represented by it rather than to employees represented by Local 1. We turn to the evidence. B. The Evidence The uncontroverted and credited testimony given by Richard Donopria, the Garden's building superintendent, and by Robert Harter, the Garden's vice president of operations and Donopria's superior, establishes the follow- ing: A show described as the Miss Black America Beauty Pageant was scheduled to be held in the Garden on August 27, 1971. As the show was to be televised, additional lighting fixtures had to be installed the day before. Therefore, on August 25, Donopria telephoned James O'Hara, Local 3's assistant business manager; apprised him of the need for the installation of the extra lighting; and proposed that this work be shared between Local 3 the musical equipment on stage ' The Respondent does not contend that the Garden's refusal to assign the disputed work to employees represented by it was in violation of a Board Order or certification of bargaining representative If the Garden's refusal were in violation of a Board Order or certification, Sec 8(b)(4)(D), by its terms, wquld not illegalize the Respondent's alleged conduct 8 Sec 102 91 of the Board's Rules and Regulations 9 I also rejected an unfair labor practice charge (Case 2-CD-449) filed on October 18, 1972, by the Garden against Local I alleging a violation of Sec 8(b)(4)(i)(u)(D), the Acting Regional Director's refusal to issue a notice of hearing under Sec 10(k) of the Act or to issue a complaint, and the General Counsel's rejection of Local 3's appeal from the Acting Regional Director's ruling on the ground that Local 3 lacked standing to effect the appeal These documents were offered by the Respondent to show that the Regional Director misinterpreted the Board's so-called ambiguous and vague award involved in the present case and that the Respondent was thereby denied due process I excluded the proffered documents on the ground that they did not relate to the issue before me and that the General Counsel had unreviewable authority and discretion to issue or refuse to issue a complaint in Case 2-CD-449 In addition. I rejected a music critic's review of a performance of the Bejart Ballet which appeared in the New York Times on November 12, 1972, and which the Respondetit offered to demonstrate that the Acting Regional Director erred in interpreting the Board's award as granting Local I the work involved in the charge in Case 2-CD-449 I ruled that the review did not relate to an issue before me and was hearsay in nature 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Local 1 on "a 50-50 basis," as had been done in the past.10 O'Hara, however, refused to agree to this arrange- ment stating that, unless Local 3 did all the work, there would be no show . In response to Donopria's question, O'Hara noted that this was a firm decision. The conversa- tion ended with O'Hara answering Donopria's further inquiry that he would remain in his office for an hour or so. The same morning Donopria reported his conversation with O'Hara to Harter, who thereupon telephoned O'Hara. Voicing dismay at O'Hara's attitude and his refusal to adhere to the 50-50 arrangement, Harter reminded him that this was the practice in similar past situations. O'Hara replied that he had gone along with this arrangement with respect to two previous shows, but he was unhappy with the result and that consequently he would not accept the work on a 50-50 basis O'Hara then informed Harter that the show would not go on unless Local 3 received 100 percent of the work. When O'Hara indicated that he would not recede from his position, Harter declared that the Garden would do everything in its power to put the show on. This evoked O'Hara's response that he would do everything in his power to see that the show did not take place. Following this conversation, the charge in this case was filed As indicated in the Board's Decision and Determination of Dispute, the Regional Director secured the same day (August 25, 1971) a temporary restraining order from the United District Court for the Southern District of New York and the Black American Beauty Pageant was held as scheduled with the disputed lighting work being performed in accordance with the 50-50 arrangement. In view of the foregoing, I find, contrary to the Respondent's contention, that the Respondent threatened, coerced, and restrained the Garden with an object of forcing the Garden to assign the work in dispute to employees represented by it rather than to employees represented by Local 1. Such conduct clearly contravened the prohibitions of Section 8(b)(4)(ii)(D) of the Act. IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action, including the posting of an appropriate notice to members and employ- ees, designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Garden is an employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act. 2. The Respondent and Local I are labor organizations within the meaning of Section 2(5) of the Act. 10 In its Decision and Determination of Dispute, the Board noted that the performance of the work in question had long been the subject of dispute between the Unions with the result than an arrangement was reached whereby the Garden would assign the work to the Unions on a "50-50 basis" with the understanding that no precedent would thereby be established 3. The Respondent has continually refused to notify the Regional Director for Region 2, in writing , as required in the Board's Decision and Determination of Dispute (198 NLRB No. 61) whether it will refrain from forcing or requiring the Garden, by means proscribed by Section 8(b)(4)(D), to award the work described below to its members rather than to employees represented by Local I to whom the Board in 10(k ) proceedings had assigned the work. Specifically , the work consists of: (1) Handling the installation , operation, and mainte- nance of portable 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, and the installation, operation, and maintenance of extra portable sound and projec- tion equipment for theatrical productions and theatri- cal elements of semitheatrical productions at the Employer's jobsite at Madison Square Garden, 4 Pennsylvania Plaza, New York, New York. (2) Install- ing, placing, adjusting, moving during the performance and removing microphones supplied from the outside for rock and roll concerts when such sound equipment is associated with the musical equipment on stage. 4. By threatening, coercing, and restraining the Garden with an object of forcing or requiring the Garden to assign the above-described work to employees represented by Local 3 rather than to employees represented by Local 1, although the Garden was not failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(D) of the Act. 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommended: ORDER" The Respondent, Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, its officers, representatives, agents, successors, and assigns , shall: 1. Cease and desist from threatening, coercing, or restraining Madison Square Garden Center , Inc., where an object thereof is to force or require said Company to assign the work described below to employees represented by the Respondent rather than to employees represented by Theatrical Protective Union No. I of International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, unless Madison Square Garden Center, Inc., is failing to conform to an order or certification of the Board ii In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes IBEW , LOCAL UNION NO 3 725 determining the bargaining representative for employees performing such work. The work involved consists of: (1) Handling the installation, operation, and mainte- nance of portable 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, and the installation, operation, and maintenance of extra portable sound and projec- tion equipment for theatrical productions and theatri- cal elements of semitheatrical productions at the Employer's jobsite at Madison Square Garden, 4 Pennsylvania Plaza, New York, New York. (2) Install- ing, placing, adjusting, moving during the performance and removing microphones supplied from the outside for rock and roll concerts when such sound equipment is associated with the musical equipment on stage. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its business office, hiring halls, and meeting places, copies of the attached notice marked "Appen- dix." 12 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 2, signed copies of the attached notice for posting by Madison Square Garden Center, Inc., at its facilities at the Garden in New York City, New York, if the Company is willing to do so. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Square Garden Center, Inc., where an object thereof is to force or require that Company to assign the work described below to employees represented by us rather than to employees represented by Theatrical Protective Union No. 1 of International Alliance of Theatrical Stage Employees and Motion Picture Machine Opera- tors of the United States and Canada, unless Madison Square Garden Center, Inc., is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work. The work involved consists of: (1) Handling the installation, operation, and maintenance of portable 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, and the installation, operation, and maintenance of extra portable sound and projection equipment for theatrical productions and theatrical elements of semitheatrical productions at the Employer's jobsite at Madison Square Garden, 4 Pennsylva- nia Plaza, New York, New York. (2) Installing, placing, adjusting, moving during the perform- ance and removing microphones supplied from the outside for rock and roll concerts when such sound equipment is associated with the musical equipment on stage. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce, or restrain Madison Dated By LOCAL UNION No. 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0330.