Intl. Brothd. of Electrical Wkrs., Local 98

INTL. BROTHD. OF ELECTRICAL WKRS., LOCAL 98 International Brotherhood of Electrical Workers, Local 98 It and Inter Communication Services, Inc.2 and Communication Workers of America, AFL-CIO 3 Case 4-CD-319 December 1, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by CWA, alleging that IBEW had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by CWA. Pursuant to notice, a hearing was held before Hearing Officer Jeffrey C. Falkin on July 12, 1973. All parties at the hearing were afforded full opportu- nity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. 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: 1. THE BUSINESS OF THE EMPLOYER The record discloses that the Employer, which is located in Newburgh, New York, is engaged in the business of electrical installation and maintenance of communication equipment. The Employer com- menced operations in January 1973. The parties stipulated, and 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 The parties stipulated, and we find, that IBEW and CWA are labor organizations within the meaning of Section 2(5) of the Act. i Herein called IBEW. 2 Herein called ICS. 3 Herein called CWA. 4 The parties stipulated to the inclusion, as part of the instant record, of the transcript and exhibits in the earlier 10(1) proceeding under the Act III. THE DISPUTE A. Background and Facts 4 689 ICS accepted a subcontract from Arcata Commu- nications Corporation to install telephone equipment and systems in the Pennsylvania College of Podiatric Medicine Building5 being constructed at Eighth and Race Streets, Philadelphia, Pennsylvania. ICS and CWA entered into a recognition agree- ment on January 24, 1973, but no collective-bargain- ing agreement was negotiated. Pursuant to said agreement, the Employer assigned the telephone installation work at the College to its employees. A crew of five ICS employees, including Foreman James Dougherty, reported to the jobsite on April 16, 1973.6 All five members of the crew were represented by CWA. When Dougherty and his men arrived at the worksite, they were approached by Mitch Tuben, a shop steward for IBEW, which represented other employees who were working elsewhere at the site. Dougherty testified that Tuben introduced himself and asked whether the ICS employees had "checked in with [IBEW], in regard to doing the work." Dougherty told Tuben that he had not done so. Dougherty further testified that Tuben asked him to telephone James McDevitt, an IBEW business agent, who requested that Dougherty not begin the installa- tion until he [McDevitt] came to the jobsite. Although Dougherty waited until about 4 or 4:30 p.m., McDevitt did not appear. On April 17, the ICS employees began work at the College at 8 a.m. At 9 a.m., McDevitt approached Dougherty and asked him "if ICS was going to do the work." When Dougherty replied in the affirma- tive, McDevitt stated that he did not feel that it was CWA's work, but that it was IBEW's work. McDev- itt also commented to Dougherty, "that he [McDev- itt] knew [the IBEW] wouldn't pursue that, on the grounds of the work awarded, but on wage stand- ards. The following morning, April 18, Dougherty had another conversation with the IBEW shop, steward, Tuben, who stated that he felt that the disputed work was IBEW work. On April 23, IBEW members began picketing7 the jobsite about 7:30 a.m., at which time the president of the College, Dr. James Bates, arrived on the scene. When Dougherty and his men reported for work, Dr. Bates told them that they would have to remain off the job until the dispute could be settled. Pursuant to involving the same parties and conduct 5 Herein called the College. 6 All dates mentioned herein are in 1973 unless otherwise stated 7 The picket signs contained the legend: "This Is A Line To Protest The Wages." 207 NLRB No. 109 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dr. Bates' request, Dougherty and his crew remained off the job on April 23 and 24. At Dr. Bates' suggestion, Dougherty telephoned the IBEW's attorney, Bernard Katz, and was informed that the purpose of the picketing was to protest "the destruction of area wage standards." Katz also informed Dougherty, that employees represented by IBEW in the Philadelphia area received substantially higher wages than those of employees represented by CWA. Dougherty and the other ICS employees decided to report to work on April 25 and to bring with them Joseph Clarkin, the CWA representative. When Dougherty and Clarkin arrived at the jobsite at 8 a.m., they were approached by Tuben, the IBEW shop steward, who began questioning them as to whether they (ICS employees) intended to work that morning. When Dougherty asked Tuben whether there would be picketing if the ICS employees went back to work, Tuben answered in the affirmative. Clarkin then asked Tuben, "Why do you have picket line? You're a union and we're a union." Tuben replied, "Well, we'll organize you." The ICS employees worked about 6 hours on April 25, but on April 26 the picketing resumed with the pickets carrying the same signs which were used on April 23. When George Potter, an official of the College, was informed of the picketing, he told Dougherty that he and his men would have to leave the jobsite'until the dispute could be settled. As the ICS crew was leaving the College, Dougherty approached McDevitt, who was one of the pickets, and asked him whether IBEW would have picketed the job if the Bell Telephone Company had been doing the disputed work. McDevitt replied in the negative and explained that "they're a utility and not subject to paying the area wage taxes." Pursuant to Potter's request, the ICS employees did not report to work after April 26. On May 11, CWA filed charges against IBEW for violation of Section 8(b)(4)(i) and (ii)(D) of the Act. Pursuant to an injunction issued on July 18 by the United States District Court for the Eastern District of Pennsylvania, the ICS employees returned to work on July 23 but IBEW resumed its picketing. In a hearing held on July 27, the District Court for the Eastern District of Pennsylvania refused to grant CWA's motion to hold IBEW in civil contempt because the court did not find clear and convincing evidence that would support such a determination. telephone equipment and systems -in the Pennsylva- nia College of Podiatric Medicine -Building at Eighth and Race Streets, Philadelphia, Pennsylvania. C. Contentions of the Parties The CWA contends that there is reasonable cause to believe that IBEW has violated Section 8 (b)(4)(i) and (ii)(D) of the Act and that the record supports ICS's assignment of the work in dispute to its employees who are represented by CWA. The CWA cites in support of the assignment considerations of area and industry practice, skills, and ICS's recogni- tion agreement with CWA. IBEW asserts that its motion to quash the notice of ' hearing should be granted because it disclaims the disputed work. IBEW also contends that its sole objective was to protest the destruction of area wage standards. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. As stated above, the record shows that IBEW picketed the worksite on two separate occasions: The record also discloses that the picket signs indicated that the purpose of the picketing was to protest wage standards. IBEW therefore disclaimed the disputed work, asserting that its sole purpose was to protest wage standards. However, the conversations between CWA and IBEW representatives at the worksite clearly indicate that an object of the picketing was to secure the disputed work for IBEW members. On the basis of the entire record, we find that the IBEW disclaimer is not valid and we are satisfied that there is reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred. Accordingly, we hereby deny the IBEW motion to quash the notice of hearing. Based on the record before us, there is at present no agreed-upon method for the voluntary adjustment of this dispute. Under these circumstances, we find that it will effectuate the policies underlying Sections 10(k) and 8(b)(4)(D) of the Act for us to determine the merits of the dispute. Accordingly, we find that this dispute is appropriate for resolution under Section 10(k) of the Act. B. Work in Dispute The work in dispute herein is the installation of E. Merits of the Dispute Section 10(k) of the Act requires the Board to make INTL. BROTHD. OF ELECTRICAL WKRS., LOCAL 98 691 an affirmative award of the disputed work after giving due consideration to various factors .8 1. Certification and collective-bargaining agreements None of the labor organizations involved herein has been certified by the Board as the collective- bargaining representative for a unit of the Employ- er's employees. However, the Employer on January 24 agreed to recognize CWA as the representative of its employees. 2. Employer's assignment Pursuant to its recognition agreement, the, Employ- er assigned the work in dispute to its employees. 3. Employer, industry, and area practice The record clearly establishes that since the Employer commenced business, its own employees, who are members of the CWA, have performed all aspects of the disputed work. The record also indicates that it is the practice of Western Electric Company,9 which installs about 99 percent of the telephone equipment in the Philadelphia area, to use CWA members. It is also evident from the record that the work performed by, the Employer's employ- ees is substantially similar to that performed by the employees of Western Electric Company. We there- fore conclude that industry, area, and employer practice favor the assignment of the disputed work to employees represented by CWA. 4. Skills The record indicates that (1) the Employer's employees possess the necessary skills to perform the disputed work and (2) the Employer is satisfied with their performance. Conclusion Having considered all pertinent factors herein, we conclude that employees represented by CWA are entitled to perform the work in dispute. This assignment is consistent with the recognition agree- ment and Employer, industry, and area practice. In addition, the Employer is satisfied with the perform- ance of its employees who possess the requisite skills for the type of work involved herein. We conclude on the basis of the above factors that the Employer's assignment should not be changed. Therefore, we shall award the work in dispute to employees of Inter Communication Services, Inc., who are represented by the Communication Workers of America, AFL-CIO, 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 foregoing and the entire record in this case, the National Labor Relations Board hereby makes the following Deter- mination of Dispute: 1. Employees of Inter Communication Services, Inc., who are currently, represented by Communica- tion Workers of America, AFL-CIO, are entitled to perform the work of installing telephone equipment and systems at the Pennsylvania College of Podiatric Medicine. 2. International Brotherhood of Electrical Work- ers, Local 98, is not entitled by means proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act to force or require Inter Communication Services, Inc., to assign the above work to individuals represented by Interna- tional Brotherhood of Electrical Workers, Local 98. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Broth- erhood of Electrical Workers, Local 98, shall notify the Regional Director for Region 4, in writing, whether or not'they will refrain from forcing or requiring Inter Communication Services, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by it rather than tol employees represented by Communication Workers of America. 8 N. L.RB., v. Radio & Television Broadcast Engineers Union, Lccal 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573, 586. 9 A subsidiary of Bell Telephoie Company