Local Union No. 3, Electrical Workers

528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 3, International Brotherhood of Elec- trical Workers, AFL-CIO and Eugene lovine, Inc. and The Board of Education of the City of New York and Local 363 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Cases 29-CD-178 and 29-CD-182 July 25, 1975 DECISION AND ORDER QUASHING NOTICE OF HEARING By MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by The Board of Education of the City of New York (hereafter Board of Education) and Eugene Iovine, Inc. (hereafter Iovine), alleging that Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (hereafter Local 3), has violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice in Brooklyn, New York, on December 12 and 13, 1974,' before Hearing Offi- cer Martha R. Kave. The Board of Education, Iov- ine, Local 3, and Local 363, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereafter Local 363),2 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.; The Board of Education, Local 3, and lovine have filed briefs with the Board. 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 entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER Iovine is a New York corporation engaged in elec- trical contracting work at various jobsites in New York. During the past year, Iovine has purchased 1 All dates are in 1974 unless otherwise indicated. 2 Local 363 is the bargaining representative for the other group of em- ployees whose work assignments are at issue in this alleged labor dispute. 3 Wickham Contracting Co., Inc., and Ralph Perrone, Joint Venturers (hereafter Wickham) were allowed to appear and participate at the hearing as interested parties. and received in excess of $50,000 worth of supplies from points outside the State of New York. It has received contracts from the Board of Education for work at Primary School 175, City Island, the Bronx, and East New York Vocational High School in Brooklyn. The Board of Education is responsible for the edu- cation of school children of the city of New York. The Division of School Buildings of the Board of Education oversees the construction and repair work on school sites throughout the New York metropoli- tan area. At the present time, the Board of Education has awarded approximately 120 major construction contracts and several minor contracts. On the basis of the foregoing, we find that bovine is an employer within the meaning of Section 2(2) of the Act; that it 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 juris- diction herein.4 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that Local 3 and Local 363 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Board of Education utilizes a bidding proce- dure to assign electrical work which is to be done for either the modernization of an existing facility or the installation of electrical wiring and equipment in a facility under construction. Pursuant to the bidding procedure which requires that contracts be awarded to the lowest bidder who has met the prequalification requirements, the Board of Education awarded a contract to Iovine, an electrical contractor which hires electricians who are members of Local 363. Iov- ine commenced work on this project in November 1973. In the past, the Board of Education has award- ed most of the electrical contracting work on its pro- jects to employers whose employees have been repre- sented by Local 3. The present dispute arose in July 1974, when Local 3 electricians intermittently stopped work on various Board of Education projects after such action was authorized at a July 8 Local 3 union meeting. During a July 19 meeting with Hugh McLaren, Jr., executive director of the Division of School Buildings for the For reasons stated elsewhere in this Decision , we find that the Board of Education is not a statutory employer within the meaning of Sec . 2(2) of the Act. LOCAL UNION NO. 3, ELECTRICAL WORKERS Board of Education, Local 3 union officials stated that they were apprehensive over the lack of job se- curity because non-Local 3 contractors had been awarded work on Board of Education projects. Fol- lowing this meeting, McLaren sent letters to lovine and Wickham, another contractor whose employees are not represented by Local 3, ordering them to leave their respective worksites.5 The letters in part stated that "the labor which you are using in the per- formance of your contracts at the above buildings is causing work stoppages on various other buildings and projects of the Board of Education." Although Iovine received a phone call informing him of the letter on July 23, he refused to stop work. There is testimony that thereafter a Board of Education offi- cial told lovine that Local 3 had informed the Board of Education that, unless Iovine and other non-Local 3 affiliates were removed from the Board of Educa- tion jobsites, Local 3 intended to effectuate a work stoppage at those sites. On July 29, Iovine filed charges alleging that Local 3 violated Section 8(b)(4)(D) of the Act. The Board of Education filed similar charges on August 28 .6 B. Work in Dispute The Board of Education and lovine agree that the work in dispute involves the assignment of all electri- cal contracting work for new construction, moderni- zation, and repairs at schools and other facilities pur- suant to contracts with the Board of Education. Local 3 takes the position that there is no work in dispute among the parties. C. Contentions of the Parties The Board of Education contends that the work stoppages by Local 3 at the various school construc- tion sites during the summer of 1974 created a dis- pute within the meaning of Section 8(b)(4)(D) of the Act. The Board of Education argues that the object of Local 3's strike action was to force it to cease doing business with Wickham and lovine, to force various contractors to cease doing business with the Board of Education, and to force the Board of Edu- cation, Wickham, and Iovine to assign work to mem- bers of Local 3 rather than to those of Local 363. The Board of Education declines to state a prefer- 5 Although the July 19 letters were sent by regular mail, the Respondent sent certified letters to the same effect on July 23. 6 On July 23, upon receiving the Board of Education letter , Wickham filed 8(b)(4)(B) charges against Local 3. lovine and the Board of Education also filed charges that Local 3 violated Sec . 8(bX4XB) of the Act on July 29 and August 28, respectively. A hearing was held on the consolidated 8(b)(4)(B) charges on October 24, the final resolution of which is still pend- ing. 529 ence for either employees of Local 3 or those of Lo- cal 363 in terms of their respective skills to do the necessary work, for it is satisfied that the completed work has been skillful and competent, in view of the fact that all of the contractors have met the prequali- fication requirements and the work has passed on- site inspection. However, the Board of Education as- serts that any change in the work assignments would undermine the integrity of its bidding system which ensures that the electrical work is performed by the lowest bidder who meets the specifications estab- lished for each project. Iovine contends that a dispute exists within the context of Section 8(b)(4)(D) of the Act because it was directed by the Board of Education to leave its projects in order to effectuate the job-security de- mands of Local 3. Iovine cites the fact that Local 3 bolstered its demands by threats of strike action and actual work stoppages at Board of Education job- sites. lovine asserts that the work should be assigned pursuant to the contracts awarded by the Board of Education and that there is ample record evidence to find that the employees assigned to do the work by lovine have completed such in a skillful and compe- tent manner. Local 3 contends that the notice of hearing in the 10(k) proceeding should be quashed as there is no dispute cognizable under Section 8(b)(4)(D) of the Act. First, Local 3 claims that the work stoppages did not result from a jurisdictional dispute but instead were in support of its claim to represent the electri- cians in the New York metropolitan area. In addi- tion, Local 3 argues that the work stoppages were utilized by it to convince Board of Education offi- cials to adopt a nondiscriminatory layoff plan for electricians who are not needed at any given time for its projects. Local 3 also points to the absence of reasonable cause to believe that a violation of Sec- tion 8(b)(4)(D) of the Act has occurred in light of lovine's testimony that Local 3 did not claim any work or request any assignment of work from him. In fact, Local 3 claims it was unaware that Iovine had been awarded a Board of Education contract at the time Iovine was ordered to leave its jobsites. D. Applicability of the Statute Before the Board may proceed to a determination of dispute under 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. We are not sat- isfied that such a violation has occurred in the pres- ent case. It should be noted initially that a sharp controver- sy exists over whether the Board of Education or Iov- 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ine is the employer that controls the assignment of the disputed work. In our judgment, it is unnecessary to resolve this issue for whether it be Iovine or the Board of Education that is deemed to be the employ- er which controls the actual work assignment, the same result would follow since we are required to quash the notice of hearing on the basis of the evi- dence before us. The Board of Education is an agency of the State of New York and, as a governmental entity, it is stat- utorily excluded from the definition of employers over which this Board may assert jurisdiction under Section 2(2) of the Act. While it is true that a govern- mental entity, such as the Board of Education, is considered a person within the meaning of Section 8(b)(4) of the Act,' it has not and cannot be held to be an employer for any purpose under the Act due to the restriction in Section 2(2). Thus, if in fact, the Board of Education is deemed to be in control over the assignment of the work alleged in dispute and Local 3's work stoppages were for the purpose of forcing the Board of Education to assign the work in issue to members of Local 3 rather than to members of Local 363, we would still be required under the Act to quash the rotice of hearing.' If, on the other hand, lovine is considered to be the employer for purposes of assigning the work, there is no evidence of any threats or other pro- scribed conduct being directed at lovine or the Board of Education for the purpose of forcing lovine to reassign the work in issue to Local 3 members. In fact, during the relevant period, lovine had no com- munication or contract with Local 3 representatives. During the same period, Local 3's demand upon the Board of Education was for replacement of Iovine with a Local 3 contractor. In such circumstances, we are constrained to conclude that there is no reason- able cause to believe that Local 3 has engaged in conduct violative of Section 8(b)(4)(D) of the Act with respect to Iovine. Accordingly, for the foregoing reasons, we find that there is no reasonable cause to believe that Lo- cal 3 has engaged in conduct violative of Section 8(b)(4)(D) of the Act and we shall quash the notice of hearing. ORDER 7 Local 254, Building Employees International Union, AFL-CIO (University Cleaning Co), 151 NLRB 341 (1965), enfd in pertinent part 376 F.2d 131 (C.A. 1, 1967); District Lodge No 123, International Association of Machin- ists, and Aerospace Workers, AFL-CIO 167 NLRB 977, 978, fn . 3 (1967), and cases cited therein , Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Mansfield Contracting Corporation), 205 NLRB 559 (1973). It is hereby ordered that the notice of hearing is- sued in this case be, and it hereby is, quashed. 8 There is no evidence which would support the conclusion that the Board of Education was the agent of lovine or any other contractor to which it awarded work.