Local 3, IBEW

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 3, International Brotherhood of Elec- trical Workers, AFL-CIO (Teltronics Services, Inc.)' and Communications Workers of America, AFL-CIO. Case 2-CD-481 employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED May 7, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following the filing of a charge on October 7, 1974, by Communi- cations Workers of America, AFL-CIO (herein CWA), alleging that Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (herein Local 3), has violated Section 8(b)(4)(D) of the Act, by engaging in certain proscribed activities with the object of forcing or requiring Teltronics Services, Inc., to as- sign disputed work to Local 3, rather than to employees of the Employer who are represented by CWA. Pursuant to a notice of hearing and an order re- scheduling hearing, a hearing was conducted before Hearing Officer Alexander P. Rosenberg on November 13 and 15, 1974, and January 3, 1975. All parties desir- ing to do so appeared at the hearing and were afforded a full opportunity to be heard and to present evidence bearing on the issues.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the basis of the entire record in this case, in- cluding the briefs, the Board makes the following find- ings: I THE BUSINESS OF THE EMPLOYER Teltronics, a New York corporation, is engaged in the business of installing telephone intercommunica- tions and paging systems. In the past year, it derived revenues in excess of $1 million and purchased supplies and equipment valued in excess of $50,000 directly from outside the State of New York. The parties stipu- lated to these facts and we find that Teltronics is an 1 Names of Repsondent Union and Employer appear as amended at the hearing 2 The parties stipulated to receive in evidence the transcnpt , record, and exhibits of the proceedings in Danielson v. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, 74 Civil 4782 (D.C N Y.). All parties stipulated, and we find, that Local 3 and CWA are labor organizations within the meaning of Section 2(5) of the Act. III EVIDENCE A. The Work in Dispute The dispute concerns the assignment of the work of installing telephone equipment, including cable run- ning, PABX installation and testing, and telephone hookup, in a building located at 75 Rockefeller Plaza, New York, New York. B. Background Teltronics has a collective-bargaining agreement with CWA to represent all employees that it has on its payroll. Local 3 has never represented employees on Teltronics payroll. During busy periods, Teltronics does subcontract cable-pulling work to other employ- ers whose employees are not represented by CWA. About 5 percent of its subcontracts go to employers who employ members of Local 3, but, according to Teltronics, such subcontracting is done only when Tel- tronics is forced to do so to avoid disputes of the type which exists in this case. Scandinavian National Tourist Office, herein called Scandinavian, is a firm composed of the international tourist bureaus of Iceland, Norway, Sweden, Denmark, and Finland, engaged in promoting tourism and dis- pensing information concerning the aforementioned countries to the various travel agencies within and without the State of New York. Rockefeller Center, Inc., owns and operates the com- plex of buildings known as Rockefeller Center. It leased one of these buildings, 75 Rockefeller Plaza, to Warner Communications, Inc., and Warner in turn leased space in said building to Scandinavian. Benjamin Electric Engineering Company, Inc. (herein Benjamin), is an electrical contractor in the building and construction industry with offices in New York. Its employees are represented by Local 3. Benja- min was engaged in certain electrical contracting work at 75 Rockefeller Plaza at times material herein. In late September 1974, Scandinavian engaged Tel- tronics to install a complete telephone system for Scan- dinavian on the 11th floor of 75 Rockefeller Plaza. Teltronics commenced the work of installing this tele- phone system for Scandinavian on or about October 1, 1974, and assigned its own employees, who are mem- 217 NLRB No. 142 LOCAL 3, IBEW 835 bers of and represented by CWA, to perform this work. The work was to be completed by October 5, 1974. Benjamin, whose employees are members of and repre- sented by Local 3, had for some time been performing electrical contracting work at 75 Rockefeller Plaza on various floors in the building including the 11th floor. On or about October 2, 1974, Lou Pingar, a Local 3 steward, visited the 11th floor of that building, where Teltronics employees were performing telephone in- stallation work pursuant to Teltronics' contract with Scandinavian. Pingar asked what the CWA members were doing, and mentioned that IBEW members had been performing this work previously. Pingar advised the Teltronics employees that Local 3 had jurisdiction over common carrier work, such as telephone systems. Pingar asserted that Teltronics' employees had no right to complete the work, ending with the statement, "If we don't do the work, we are going to walk." Pingar informed the Benjamin foreman, Mr. Carlo, "You bet- ter tell the superintendent that if CWA members do the work, we're going to quit." The evidence in the district court proceeding revealed that Benjamin employees en- gaged in work stoppages on the 11th floor on October 2, but continued to work on other floors. However, on October 8, members of Local 3 stopped doing all elec- trical work in the entire building. The court' record further discloses that representatives of Local 3 threat- ened Rockefeller Center, Warner Communications, Scandinavian, and Teltronics with work stoppages if the work in issue was performed by employees repre- sented by CWA, rather than by employees represented by Local 3. The evidence also disclosed that following these threats, and at the urging of Rockefeller Center and Scandinavian, in order to get the job done, a sub- contract for the work in issue went to Zweifel Electric on October 9, 1974, whose employees are represented by Local 3. The work was finally completed on October 15, 1974. Additional evidence was adduced concerning similar jurisdictional claims by Local 3 for telephone installation work being performed at 63rd Street and Fifth Avenue for GMG Construction Co. on October 30, 1974. C. Contentions of the Parties Local 3 contends that the notice of hearing should be quashed because Local 3 makes no claim for the work and it would not contest the merits of the assignment of the work. It further contends that it did not author- ize or ratify Pingar's conduct. It also contends that the record does not justify a broad assignment of the work in dispute because there is no "explanation" of the work performed pursuant to Teltronics' other subcon- ti acts or assignments to other employers whose em- ployees are -either nonunion or are represented by Local 3. CWA contends that Local 3 is responsible for the threats, coercion, and the work stoppages, and that the assignment to Teltronics' employees represented by it should be affirmed. It further contends that the work in dispute should be awarded to employees of Teltron- ics represented by CWA in all areas where Local 3 has jurisdiction. D. The Applicability of the Statute Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated. We find no merit in Local 3's contention that the notice of hearing should be quashed. The uncon- tradicted testimony of several witnesses shows that Pingar3 identified himself as a steward of Local 3 in Rockefeller Center, made a claim for the telephone work, indicated that there were electricians there to do the same work that Teltronics assigned to its own em- ployees, and asserted that Local 3 does all the common carrier work on the premises. In response to a state- ment by a CWA representative, Clarkin, that the em- ployees to whom the work was assigned were going to do the work, Pingar replied that as long as CWA mem- bers were on the 11th floor Local 3's members would refuse to do other work to which they were assigned. Subsequently, all electricians did leave the floor. We find that Pingar was an agent of Local 3, and that he unequivocally made a claim for the work in dispute. We also find that Local 3's letter addressed to the Regional Director, dated October 11, 1974, 9 days after Pingar's claim, and written after the charge was filed, is not an effective disclaimer of the work in dispute. Local 3 never informed the Employer, Teltronics, that it was disclaiming the work in dispute.` Accordingly, we find that Local 3 claims the work for its members, and that competing claims for the work in dispute have been made by two employee groups. Therefore,' inasmuch as Local 3 vacated the jobsite and threatened Rockefeller Center, Warner, Scandinavian, and'Teltromcs with work stoppages to force reassignment of the work, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the dispute is properly before the 3 Pingar was not called to testify 4 we also agree that the Hearing Officer properly denied Local 3's request to subpena "all books and records setting forth every subcontract and as- signment of telephone work to another employer by Teltronics, Inc., since January 1, 1974," because it was not within the scope of the notice of hearing. Furthermore, those records would have no bearing on the outcome of this proceeding as our determination herein applies only to the work i performed by Teltronics 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board for determination under Section 10(k) of the Act. 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. As the Board has stated, the determination in a jurisdic- tional dispute case is an act of judgment based on com- monsense and experience in weighing these factors. We find the following factors are relevant in making a determination of the dispute before us. 1. Collective-bargaining agreements Neither Local 3 nor CWA has been certified by the Board as the collective-bargaining representative for Teltronics' employees. However, Teltronics recognized CWA as collective-bargaining agent for its employees on April 21, 1973, and entered into a bargain agree- ment which expires on April 1, 1976. This factor weighs heavily in favor of assigning the work to em- ployees represented by CWA. 2. Employer past practice Evidence was adduced which demonstrated that Tel- tronics, pursuant to its bargaining agreement, generally assigns the installation of telephone systems to its own employees who are represented by CWA. Teltronics has; however, in approximately 30 percent of its jobs, subcontracted the running of cable to other employers, whose employees are not represented by CWA. The Employer conceded that this subcontracting practice was followed because of manpower shortages in the Teltronics staff except in some instances where a sub- contractor was engaged to perform the work to avoid conflicts with Local 3. This factor also favors an award to the employees represented by CWA. 3. Skills and training The record establishes that employees of the Em- ployer possess the skills necessary to perform the dis- puted work. The work is performed with the simplest of tools and does not require the skills of a journeyman electrician and has been performed capably and to the Employer's satisfaction by its own employees repre- sented by CWA. As electricians represented by Local 3 also possess these skills, this factor does not favor an award in either respect. Conclusions Upon the record as a whole, and after full considera- tion of all relevant factors involved, we conclude that the employees of the Employer, represented by CWA, are entitled to perform the disputed work. In reaching this conclusion, we have relied on the Employer's as- signment of the disputed work to its own employees, the fact that this assignment is consistent with the Em- ployer's predominant past practice, and the collective- bargaining agreement between- the Employer and CWA. Our determination is limited to the particular controversy which gave rise to this -proceeding. Our award is made to the employees of Teltronics, Inc., represented by CWA, and not to that Union or its members. CWA requested that the work in dispute be awarded to employees of Teltronics represented by CWA at all locations wherein Local 3 has jurisdiction, citing as argument therefor that Local 3 and other IBEW locals in New York and elsewhere have established a consist- ent pattern of disrupting work performed by public and private telephone and communications companies whose employees are represented by CWA. In this re- spect we note that Local 3 did advise the Regional Director that there will be no future problems at the jobsite. However, the record before us does not define the jurisdictional limits of Local 3. The Board need not confine its award to a single job if there is evidence that similar disputes will occur in the future. Therefore, we conclude that the evidence herein does not justify a broader award at this time. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Teltronics Services, Inc., repre- sented by Communications Workers of America, AFL-CIO, exclusively, are entitled to perform the work of installing telephone equipment, including cable running, PABX installation and testing, and telephone hookup, at the Scandinavian National Tourist Office, in the office building located at 75 Rockefeller Plaza, New York, New York. 2. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the assignment of the above work, or any part thereof, to its members or to employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Load Union No. 3, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Re- gion 2, in writing, whether or not it will refrain from forcing or requiring, by means proscribed by Section 8(b)(4)(D) of the Act, the assignment of the disputed work in a manner inconsistent with this determination.