IBEW, Local 456, AFL-CIO

IBEW, LOCAL 456, AFL-CIO International Brotherhood of Electrical Workers, Lo- cal 456, AFL-CIO and Cat Electric Co., Inc. International Brotherhood of Electrical Workers, Lo- cal 164, AFL-CIO andCat Electric Co., Inc. Cases 22-CD-252 and 22-CD-257 May 7, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Cat Electric Co., Inc., herein called the Employer, alleging that International Brotherhood of Electrical Workers, Local 456, AFL-CIO, herein called Local 456, and International Brotherhood of Electrical Workers, Local 164, AFL-CIO, herein called Local 164, had violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Em- ployer to assign certain work to employees represented by Local 456 and by Local 164 rather than to the Employer's own employees who are unrepresented. Pursuant to notice, a consolidated hearing was held before Hearing Officer Bernard Suskewicz on Novem- ber 114 and 21 and on December 2 and 12.' All parties appearing at the hearing2 were afforded full oppor- tunity to be heard, to examine and cross-examine wit- nesses, and to adduce evidence on the issues. The par- ties did not file briefs. 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 Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case,, the Board makes the following findings: 1 All dates are in 1974 unless otherwise noted. 2 Counsel for the Respondent Unions entered an appearance the first 2 days of the 10(k) hearing for the limited purpose of moving to quash the 10(k) proceeding inasmuch as Respondents' alleged objective was to protest the Employer's substandard wages and working conditions and to note in the record an allegation that the Hearing Officer was biased toward the Employer Counsel did not participate further in the 10(k) hearing and on November 14, 1974, appealed the Hearing Officer's denial of Respondents' motion to dismiss the 10(k) proceedings. On December 2, 1974, the Board, by telegraphic order, denied Respondents' motion to dismiss with the under- standing that the Hearing Officer's ruling would be reviewed along with the entire record when the matter was presented to it 3 We have fully considered Respondents' allegation of bias on the part of the Hearing Officer. However, our examination of the full record in this proceeding has revealed no evidence which would support such a charge. Accordingly, the Respondents' motion to dismiss on the grounds of bias is hereby denied. I THE BUSINESS OF THE EMPLOYER 845 The Employer is engaged in the business of electrical construction and maintenance work in the State of New Jersey. During the past 12 months, the Employer purchased goods and materials valued in excess of $50,000 from suppliers located within the State of New Jersey, said goods and materials having originated out- side the State of New Jersey and said suppliers being directly engaged in commerce within the meaning of the Act. The names of the suppliers include General Electric Supply Co., Gavan-Graham Electrical Pro- ducts, and Graybar Electric Company. On the basis of the above facts, we find that the Employer is engaged in a business affecting 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 herein. II THE LABOR ORGANIZATIONS INVOLVED The Employer stipulated, and we find, that Local 456 and Local 164 are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE The work in dispute in Case 22-CD-252 involves the installation of embedded conduits, exposed conduits, panel feeders, fire alarms, paging systems, clocks, lights, and receptacles used in the electrical construc- tion of new additions to and renovation of the Central and the Roselle Smith Schools located in East Bruns- wick, New Jersey. The work in dispute in Case 22-CD-257 involves essentially the same processes and equipment as described in Case 22-CD-252; however, the situs of the dispute is the Municipal Building work project in Norwood, New Jersey, and the Fire House work project in Kearny, New Jersey. The Employer began working on the East Brunswick project on Au- gust 13. Michael Catalfano, the Employer's president, assigned the work to three of the Employer's em- ployees, who are unrepresented. A crew of three em- ployees was first dispatched to begin the work on Sep- tember 3. On or about August 1, Catalfano had received a phone call from Frank Marchito and Buddy Boyce, business agent and assistant business agent, re- spectively, for Local 456. According to Catalfano, the business agent had called to determine Catalfano's in- tentions as to how he could man the East Brunswick work project. Catalfano replied that he intended to utilize his "non-union people." Approximately 2 weeks later Catalfano received another phone call from Buddy Boyce with the same inquiry, and Catalfano repeated his prior response that he planned to utilize "non-union" personnel to perform the work. Boyce, according to Catalfano, asked him to sign up with Lo- 217 NLRB No. 147 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cal 456. Catalfano refused. The parties scheduled a meeting on September 4. Present at the meeting were Michael Catalfano for the Employer, and Frank Mar- chito and Buddy Boyce for-Local 456. After the meet- ing started, Catalfano reiterated that he intended to use his own employees whereupon Marchito told him "this is my territory and this is my jurisdiction. I am more or less going to pick at [sic] your jobs and give you a hard time." Marchito also stated that he had approxi- mately 20 qualified men sitting on the bench to perform the disputed work. Catalfano testified that, in an effort to reach a compromise, he,offered to utilize employees who were represented by Local 456 to the extent that doing so would not require him to displace his em- ployees. Marchito would not accept this offer. On Sep- tember 19, Local 456 caused approximately 10 pickets to appear at the East Brunswick work project and the pickets passed out handbills protesting the Employer's wages and working conditions.' Local 456 ceased picketing on or about November 11, pursuant to an informal agreement pending the outcome of 10(1) pro- ceedings instituted in the U.S. District Court for the District of New Jersey on October 18, 1974. As a result of the picketing, there was a work stoppage of 1 day (October 1) by the ironworkers who were working at the jobsite. In Case 22-CD-257, the disputed work was also assigned by the Employer to its own unrepresented employees. On October 11, Catalfano had a conversa- tion with Howard Scher, business agent of Local 164, wherein Scher demanded that the Employer sign a col- lective-bargaining agreement with Local 164 and that its members be assigned the disputed work. Catalfano refused and Scher then stated, inter alia, that he would picket the Employer's jobsites in Norwood and Kearny, New Jersey. On or about October 11, Local 164 caused pickets to appear at the Kearny Fire House project, and on or about October 14, Local 164 caused pickets to appear at the Norwood Municipal Building. The pickets car- ried signs that read: CAT ELECTRIC IS EMPLOYING ELECTRI- CIANS AT LESS THAN UNION STANDARD WAGES AND FRINGE BENEFITS. LOCAL UNION NO. 164 IBEW. Again, Catalfano testified that no agent of Local 164 inquired'of the Employer what wages and fringe bene- fits the Employer paid its employees. The picketing by Local 164 caused employees of Lega Construction Company to cease working at the Municipal Building site for approximately 10 days.' A.' Contentions of the- Parties The Employer argues that the Board should find that a jurisdictional dispute exists and it requests that the work in dispute be assigned to its own unrepresented employees on the basis of relative skills, safety, economy and efficiency of operations, and its past prac- tice. Local 456 and Local 164 disclaimed any interest in the work and moved to quash the 10(k) hearing. Nei- ther Union presented any evidence regarding the tradi- tional factors the Board relies on in determining juris- dictional dispute awards. B. Applicability of the Statute Before the Board may proceed with a determination 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. As previously indicated, there is unrebutted tes- timony that at the September 4 meeting between the Employer's president and representatives of Local 456 and during the October 11 conversation between the Employer's president and Howard Scher, business agent for Local 164, representatives of both Unions threatened the Employer with picketing, the object of which was to force or require the Employer to assign the disputed work to members of their respective labor organizations. Thus, we are presented with unrebutted record testimony which is totally inconsistent with the Unions' claim that their picketing was conducted solely for area standards objectives and with their disclaimer of interest in the disputed work. In such circumstances, we are constrained to conclude that the Unions' dis- claimer-is ineffective. Cf. General Building Laborers' Local Union No. 66 of the Laborers' International Union of North America (Georgia-Pacific Corporation), 209 NLRB 611 (1974), and Local Union No. 55, Sheet Metal Workers International Association, AFL-CIO (Gilbert L. Phillips, Inc.), 213 NLRB No. 76 (1974). Accordingly, on the record before us we find reason- able cause to believe that Section 8(b)(4)(D) has been violated and that the dispute is properly before the Board for determination pursuant to Section 10(k) of the Act. _4 According to Catalfano, agents of Local 456 made no effort to learn 5 The U S District Court for the District of New Jersey granted injunctive what wages and working conditions the Employer provided its employees relief on December 2 pursuant to a 10(1) petition filed on November 4 As Catalfano also stated that he paid the employees the prevailing wage rate far as the record reveals, there has been no further picketing by Local 164 which was identical to the union pay scale at the sites involved herein IBEW, LOCAL 456, AFL-CIO - 847 C. Merits of the Dispute 1. Certification and bargaining agreements Neither Union has been certified by the Board to perform the work in dispute. Nor is the Employer sig- natory to a collective-bargaining agreement with either Union involved. 0 2. Past practice The Employer is an electrical contractor performing both construction and maintenance work. During the past 3 years, it has, continuously utilized the services of its own employees who are not represented by either of the labor organizations involved herein. Under these circumstances, we fmd that past practice weighs in favor of awarding the work to the Employer's own employees. 3. Skills and efficiency The degree of skill necessary to perform the disputed work is possessed by the Employer's own employees as was borne out by the testimony of the Employer's presi- dent and other testimony which is unrefuted in the record. There is also evidence that the Employer has been operating efficiently using its own employees and whether the same degree of efficiency could be main- tained by using employees represented by the respective labor organizations involved herein is not ascertainable on this record, The record further reveals that (1) the Employer's employees possess the necessary skills to perform the disputed work, and (2) the Employer is satisfied with their performance. We find that these factors weigh in favor of awarding the work to the Employer's own employees who are unrepresented. Conclusions Having considered all pertinent factors herein, we conclude that the Employer's unrepresented employees are entitled to perform the work in dispute. This award is consistent with the Employer's overall past 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. Accordingly, on the basis of the entire record, we shall award the work in dispute to employees of Cat Electric Co., who are not represented by either labor organization involved herein. The present determination is limited'to the par- ticular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the foregoing and the entire record in this case, the National Labor Rela- tions Board hereby makes the following Determination of Dispute: 1. Employees of Cat Electric Co., Inc., who are cur- rently unrepresented, are entitled to perform the elec- trical construction and maintenance work at the Cen- tral and the Roselle Smith Schools which are located in East Brunswick, New Jersey. 2. International Brotherhood of Electrical Workers, Local 456, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act to force or require Cat Electric Co., Inc., to assign the above work to individuals represented by International Brotherhood of Electrical Workers, Local 456, AFL-CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Brotherhood of Electrical Workers, Local 456, AFL-CIO, shall notify the Regional Director for Region 22, in writing, whether or not it will refrain from forcing or requiring Cat Electric Co., 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 to the em- ployees of Cat Electric Co., Inc., who are unrepre- sented. 4. Employees of Cat Electric Co., Inc., who are cur- rently unrepresented, are entitled to perform the elec- trical construction and maintenance work at the Municipal Building work project in Norwood, New Jersey, and the Fire House work project in Kearny, New Jersey. 5. International Brotherhood of Electrical Workers, Local 164, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(i) and (ii)(D) of the Act to force or require Cat Electric Co., Inc., to assign the work in dispute to individuals represented by Interna- tional Brotherhood of Electrical Workers, Local 164, AFL-CIO. 6. Within 10 days from the date of this Decision and Determination of Dispute, International Brotherhood of Electrical Workers, Local 164, AFL-CIO, shall notify the Regioanl Director for Region 22, in writing, whether or not it will refrain from forcing or requiring Cat Electric Co., 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 to employees of Cat Electric Co., Inc., who are unrepresented.