Local 25, Electrical Workers, AFL-CIO

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 25, International Brotherhood of Electrical Workers, AFL-CIO and Charlane Electric Co., Inc., d/b/a Unity Electric Co.' and Highland Construction Corp. and Local 363, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 29-CD-167 June 10, 1974 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS FANNING, JENKINS, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , follow- ing charges filed by Charlane Electric Company Inc., d/b/a Unity Electric Co., herein called Charging Party or Employer, alleging that Local 25, Interna- tional Brotherhood of Electric Workers, AFL-CIO, herein called Respondent or Local 25, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Howard Edelman on January 10, 1974. Highland Construction Corp. (general contractor), the Charging Party, Local 25, and Local 363, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, herein called Local 363, appeared at the hearing and and were afforded full opportunity 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 rulings of the Hearing Officer made at the hearing are free from prejudical error and are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE COMPANY Unity Electric Co., is a New York corporation with an office at East Meadow, Long Island. At the time of the hearing it was engaged as an electrical contractor at a Smithtown, New York, construction site, the Lake Grove Shopping Center. During the past 12 months, Unity purchased goods and materi- als in excess of $50,000 from points outside of the State of New York. We find that Unity is engaged in commerce within 1 The name of the case is hereby amended so that the word Charlane is spelled pursuant to the General Counsel's request at the 10(1) proceeding. The parties have stipulated the record and certain exhibits in that proceeding ; Kaynard v. Local 25, International Brotherhood of Electrical 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 parties stipulated, and we find, that the Respondent and Local 363 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of Dispute Unity Electric Co. is the electrical subcontractor on the construction of two restaurants for Highland Construction Corp. at the Lake Grove Shopping Center. Unity, whose employees are members of Local 363, is a member of the United Construction Contractors Association. The Association had a collective-bargaining agree- ment with Local 363 extending from November 15, 1970, to November 14, 1973. Unity also had its own agreement with Local 363 which likewise expired in mid-November 1973. At the time of the hearing, the parties were negotiating a new agreement. Under these agreements Unity paid wages less than those paid under contracts with Local 25, and lower than the prevailing rates for electricians in the area. Contractors employing Local 25 employees have been competing against Unity for some time and recent events have caused Unity to file the charge herein. In June and continuing through August 1973, a business agent for Local 25, Fred Kerbs, and Highland's Lake Grove jobsite superintendent, John Melkun, Jr., met at four different times. The first meeting occurred in a parking lot adjacent to the jobsite and lasted only long enough for Melkun to ask Kerbs, who was taking pictures of the jobsite, to identify himself. Apparently Kerbs declined. The pictures were for Local 25's business manager who intended using them to keep Local 25's membership informed of jobs being done with wage scales less than Local 25's. On either July 24 or 31, they met again near the jobsite. Melkun again asked Kerbs, who again was taking pictures, for his identification. At Kerbs' insistence, they drove a short distance from the site2 and Kerbs identified himself as a business agent for Local 25. Melkun told Kerbs that he had heard of Local 25's picketing of Unity before, to which Kerbs replied, "yes, I have the picket signs in the trunk." Melkun testified at the 10(1) proceed- ing that Kerbs referred to "trouble" he had been Workers, AFL-CIO, 367 F. Supp. 1065 (1973). 2 Kerbs testified that he insisted on leaving the site before identifying himself because he had been specifically instructed by Local 25's business manager not to speak to anyone at the site. 211 NLRB No. 26 LOCAL 25, ELECTRICAL WORKERS, AFL-CIO 257 experiencing with Unity Electric on other jobs and that something was going to have to be done about this job. According to Melkun, Kerbs complained that "Unity was not Local 25," but later Melkun referred to that as not "specifically" stated. Kerbs said he would return in a week to see the outcome of their discussion. Melkun explained to Kerbs that he would get in touch with the representative parties and try to straighten the matter out. The next meeting occurred accidentally on August 3 or 4 in a nearby department store. Kerbs asked Melkun if he had heard anything about the job and Melkun replied no. Three or four days later Kerbs appeared at the jobsite. Melkun walked over to Kerbs' car and Kerbs asked if anything had been resolved. Melkun explained that Unity was supposed to get in touch with him and Kerbs then stated, "Well I don't want to put a picket line up at your job, but if I have to I will." Melkun testified that at no time did Kerbs, or any union or building trades council, ask to have Unity's contract broken, or to have Unity put off the job or substituted by another subcontractor. Several months later, on November 12, 1973, when Unity's contract with Local 363 was about to expire, Local 25 began to picket the Lake Grove jobsite with signs advertising that Unity's electricians did not receive wages and working conditions as good as those established in contracts of Local 25. Pickets were given written instructions not to block trucks and to refrain from talking to anyone. The Respon- dent's business manager testified that if the electri- cians on the site "were receiving wages and benefits that members of Local 25 received, I would be happy and glad to remove those pickets immediately." The picketing continued for 2 weeks until November 26, when Unity left the job, apparently at Highland's request. During the picketing, Highland's employees and those of the other subcontractors on the site refused to work. Once Unity left the site the picketing stopped and the employees returned to their work. Local 25 had carried on similar picketing at two other Unity jobs. In June 1973, Unity was forced to complete its work at one construction project at times when other subcontractors were not on the site. The general contractor subsequently canceled Uni- ty's contract for two additional jobs and replaced it with a Local 25 contractor. In August 1973, after 2 weeks of picketing by Local 25, Unity was canceled from work at a motel complex and again replaced by a Local 25 contractor. The most recent job cancella- tion occurred when a contractor, in August or September 1973, claimed pressure from a trades council of which Local 25 was a member as the reason why Unity was replaced on a renovation job by a contractor employing members of Local 25. B. The Contention of the Parties The General Counsel and the Charging Party contend that Kerbs' remarks to Job Superintendent Melkun at the Lake Grove jobsite were threats to picket unless the electrical work was assigned to employees who are members of or represented by Local 25. In their view, the picketing and contract cancellations in late 1973, as well as the subsequent picketing at the Lake Grove site, are evidence of an unlawful attempt to force the assignment of the electrical work. The Respondent in its brief takes the position that the 10(k) notice should be quashed because of the absence of a dispute. Respondent contends it has merely engaged in peaceful area standards picketing, truthfully advertising that Unity pays wages lower then those established by Local 25 contracts. In the preceding 10(1) hearing, and continually during the 10(k) hearing, Local 25 expressly dis- claimed any interest in the work allegedly in dispute. In a letter of December 10, 1973, to the Regional Director of Region 29, Respondent asked that the notice of hearing be quashed as it "did not and does not claim, and formally and unequivocally disclaims any of the work in question." The Respondent points out that the record is devoid of evidence that Local 25 asked Highland Construction or any other general contractor ever to replace Unity with a Local 25 contractor and that at no time did the Respondent ever ask Unity to sign a contract with, or to employ, Local 25 men. C. Applicability of the Statute Section 10(k) of the Act, which directs the Board to hear and determine disputes out of which 8(b)(4)(D) charges have arisen, restricts the Board's authority to circumstances where the employer's assignment of work is in dispute. Here we agree with the Respon- dent that the requisite dispute is absent. Respondent has carried on picketing for the purpose of advising the public that wages paid by Unity are lower than those received under its contracts. To reach that end placards advertised that as its purpose and the pickets were instructed to neither block trucks nor talk to any employees at the site. Such conduct does not indicate a dispute over work assignment 3 but merely an attempt to advertise the substandard wage scale paid by Unity. In our view, neither the conversations between 3 Ship Scaling Contractors Association, 87 NLRB 92, 98 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Business Agent Kerbs and Job Superintendant Melkun nor the picketing indicates that Local 25 ever made claim to the work. Respondent has consistently disclaimed interest in the work. No evidence was offered that it had asked Unity for a contract, or to hire its members, nor was evidence submitted to indicate that any demand was made upon Highland Construction Corp. or any general contractor to replace Unity with a contractor employing members of or employees represented by Local 25. Therefore, as no competing claim exists to the work at issue within the meaning of the Act, we shall quash the notice of hearing issued herein.4 ORDER IT IS HEREBY ORDERED that the notice of hearing issued in this case be, and it hereby is, quashed. 4 Sheet Metal Workers, Local Union No. 465 (Thorpe Insulation with Amalgamated Meat Cutters and Butcher Workmen of North America, Company), 198, NLRB 1245; Laborers' International Union of North AFL-CIO (The Great Atlantic & Pacific Tea Company, Inc.), 207 NLRB No. America Local 935, AFL-CIO (C & S Construction Co. Inc.), 206 NLRB No. 149. 133; and Local 56, Amalgamated Food and Allied Workers Union, affiliated