IBEW Local 25

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 25, International Brotherhood of Electrical Workers, AFL-CIO and Comtech Telephone Con- tractors Corporation and Communications Workers of America, AFL-CIO, Local 1156. Case 29-CD-137 April 5, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Comtech Telephone Contractors Corporation, herein called the Employer, alleging that Local 25, International Brotherhood of Electri- cal Workers, AFL-CIO, herein called Respondent, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Scott Forman on November 22 and December 11, 1972. The Employ- er, Respondent, and Communications Workers of America, AFL-CIO, Local 1156, herein called CWA, 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, a brief was filed on behalf of both the Employer and CWA. 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANIES INVOLVED The record discloses that the Employer, a New York corporation with principal office and place of business in Queens, New York, commenced opera- tions in October 1971, and sells and services telephone and related equipment. The parties stipulated, and we find, that Vinyl Masters Corporation, herein called Vinyl, in the course and conduct of its business operations during the past year, which are representative of its annual operations generally, manufactured, sold, and dis- tributed products valued in excess of $50,000 of which products valued in excess of $50,000 were shipped from its plants in Brooklyn and in Deer Park in interstate commerce directly to States other than the State in which it is located. The parties stipulated, and we find, that Sparks Electric Company, herein called Sparks, in the course and conduct of its business operations, which are representative of its annual operations generally, during the past year purchased and caused to be transported and delivered to its Farmingdale place of business electrical supplies and equipment and other goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in interstate commerce directly from States other than the State in which it is located. The parties stipulated, and we find, that Telaction Corporation, herein called Telaction, during the past year, in the course and conduct of its business operations which are representative of its annual operations generally, sold and distributed from its Hoboken place of business products valued in excess of $50,000 of which products valued in excess of $50,000 were transported from said place of business in interstate commerce directly to States other than the State in which it is located. Although the operations of the Employer herein does not alone meet our jurisdictional standards, the combined operations of the secondary employers involved are clearly sufficient for us to assert jurisdiction in this proceeding. Accordingly, we find that the Employer, Vinyl, Sparks, and Telaction are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Re- spondent and the CWA are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts' In connection with the renovation of its plant, Vinyl contracted with Sparks in March 1972 to perform general electrical work, and with Telaction for the installation of a paging and intercom system. In July 1972, Telaction sent two of its employees to the plant to install this system. Two or three days later, Richard Deasy, foreman for Sparks, told Vinyl's foreman, Brown, that he, Deasy, intended to challenge the right of the Telaction employees to perform the installation of the system because they were not union members. After Deasy spoke to the Telaction employees, they left the plant. Shortly thereafter, Vinyl General Manager Charles Clementi met with Deasy and Respondent's business delegate, Charles Fisher. Deasy and Fisher informed Clementi i The parties stipulated into the record in the instant case the entire NLRB No 135, for purposes of determining whether there is probable transcript of Comtech Telephone Contractors Company, 29-CC-331, 202 cause to believe that Sec 8(b)(4)(D) has been violated 202 NLRB No. 136 e IBEW, LOCAL 25 919 that if anyone returned to perform the installation of the paging and intercom system, they were to obtain a permit from Respondent before commencing work. Clementi then informed Brown that if any men came back to the plant to install the system, he was not to permit them to work until they had obtained clearance from Respondent. Telaction, having been unable to perform the installation of the system with its employees, subcon- tracted the work to the Employer, whose employees are members of CWA On or about August 10, 1972, the Employer dispatched two employees to perform the work in dispute. Upon their arrival at the plant, they identified themselves as employees of the Employer, but were told that they had to obtain clearance from Respondent in order to do the work. Deasy spoke with the employees, told them that they needed a permit from Respondent, and gave them Fisher's number to call. One of the employees testified that he called the number and asked for Fisher, that the person who answered did not identify himself as Fisher but acknowledged he was speaking to Respondent, and that he was told that he must come over to Respondent to get the permit. The employee next telephoned Alan Jacobs, president of the Employer, and told Jacobs how they had been prevented from installing the system. At Jacobs' suggestion, the employee called Ted Watkins, admin- istrative assistant to the vice president of District 1, CWA, and related the morning's developments. Watkins then contacted Respondent and spoke with Respondent's delegate, Stafford. According to Wat- kins, Stafford told him that the installation of the paging and intercom system was Respondent's work and that if the CWA insisted on doing it, he would pull Sparks' electricians, members of Respondent, off thejob. On August 21, 1972, Watkins, Clarkins, Interna- tional representative of CWA, and the two employ- ees of the Employer returned to Vinyl's plant, and met with Brown and Deasy. Deasy then insisted that the employees obtain clearance from Respondent before commencing work, but Watkins and Clarkins refused to do so. According to Brown, Watkins, and Clarkins, Deasy then turned to Brown and in Watkins' presence stated that if the employees did the installation of the paging and intercom system without clearance from Respondent he would take the electricians off the job. In addition, the record discloses that shortly thereafter, Deasy told Vinyl Vice President Clementi that if the CWA men "resume work, he [Deasy] will be forced to take his men out of the shop." When the men were told by Clementi that they could not work without the clearance, they left the plant. Shortly after the filing of the charges in the instant case, the Employer was permitted to return to Vinyl and complete the work in dispute, which was accomplished without further incident. B. The Work in Dispute The work in dispute involves the installation of the intercommunication and paging system at the prem- ises of Vinyl in Deer Park, New York. Specifically, the work consists of a survey of the worksite, reading of blueprints, pulling of cable through conduits and troughs, the installation of telephones and speakers at points throughout the plant, and the connection of the cable to these phones and speakers, and to the main power source. Basic tools employed in the operation are a hammer, screwdriver, pliers, and a staple gun. C. Contentions of the Parties The Employer and CWA contend that the collec- tive-bargaining history, the Employer's assignment, the skills necessary to perform the work, and the economy of the Employer's operation all favor the Employer's assignment, and that the award should cover the Employer's employees throughout Respon- dent's jurisdiction. The Respondent, on the other hand, contends the dispute has been adjusted within the meaning of Section 10(k) of the Act inasmuch as it disclaims the work in dispute. Alternatively, the Respondent argues that Deasy is not an agent of Respondent, and that Respondent should be assigned the work because there was no contract between the Employer and CWA at the time of the dispute, because the contract which was reached is silent with respect to this work, and because Respondent is experienced with such work. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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, and that there is no agreed-upon method for the voluntary adjustment of the dispute. With respect to Respondent's contention that Deasy is not an agent of Respondent, the record in the companion case, incorporated herein, fully discloses his conduct on behalf of Respondent. Therefore, we find, for the reasons set forth in our Decision in that case issued today, 202 NLRB No. 135, that the conduct and statements of Deasy are attributable to Respondent and that Respondent' is responsible therefor. With respect to Respondent's proffered disclaimer, we note that while Respondent, sometime after August 29, 1972, specifically dis- claimed the work, and, at the hearing in the instant case, offered to disclaim all work where the Employ- er was involved, the record in the companion case 920 i~ DECISIONS OF NATIONAL LABOR RELATIONS BOARD discloses that members of Respondent still consider the work in dispute within their jurisdiction. Thus, Richard Deasy testified that he considers such work to be Respondent's work and we note his status as an agent of Respondent . The Board has long held that it will not quash the notice of hearing if employee- members of a union continue to claim the work despite the union's "official" disclaimer.2 As noted, the record discloses that Deasy made various threats that the members of Respondent would leave the job if CWA was permitted to perform the work in dispute . Accordingly, we are satisfied that there is reasonable cause to believe a violation of Section 8 (b)(4)(D) did occur. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors I Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified as collective-bargaining represent- ative for a unit of the Employer's employees. At the time Telaction subcontracted the work in dispute to the Employer, the Employer had signed a formal recognization agreement with CWA covering all of its employees, but had not yet entered into a contractual relationship. A contract was reached in December 1972, but that agreement, in any case, does not specifically cover the work in dispute. We therefore find that the factors of certification and collective-bargaining agreements are not helpful in making our determination herein. 2. Employer and area practice It is uncontradicted that the Employer has consist- ently assigned the work in dispute to members of CWA. Respondent presented evidence that it had performed numerousjob installations throughout the New York metropolitan area similar to the work herein On the other hand, Alan Jacobs, president of the Employer and a former telephone company employee, testified that Bell Telephone Company, employing CWA members, has performed identical job installations to the work in dispute as a matter of course. While the area practice therefore is not helpful in making our determination, the Employer's practice does favor the Employer's assignment. 3. Skill and economy of operation It appears from the record that either craft is capable of performing the work in dispute and each has available to it the tools necessary to do the job. Furthermore, it appears that the only economic advantage to the Employer is that it does not have to pay the Respondent's scale. As either group is as skilled as the other, we conclude that the record does not support the Employer's claim of skill. Conclusions Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by the CWA are entitled to perform the work in dispute. This assignment is consistent with the Employer's preference, the assignment and the employer practice. In making this determination, we are awarding the work in question to employees employed by the Employer who are represented by the CWA, but not to that Union or its members. The 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 makes the following Determination of Dispute: 1. Employees of Comtech Telephone Contractors Corporation, who are currently represented by Communications Workers of America, AFL-CIO, Local 1156, are entitled to do the installation of the intercommunication and paging system at the prem- ises of Vinyl Masters Corporation in Deer Park, New York 2. Local 25, 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 Comtech Telephone Contractors Corpora- tion to assign the above work to its members or employees who it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, the labor organiza- tion listed in the preceding paragraph shall notify the Regional Director for Region 9, in writing, whether or not it will refrain from forcing or requiring Comtech Telephone Contractors Corporation, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to its members or employees whom it represents rather than to employ- ees of Comtech Telephone Contractors Company, represented by Communications Workers of Ameri- ca, AFL-CIO, Local 1156. 2 See, for example, Decors, Inc, 152 NLRB 278