Local 3, International Brotherhood of Electrical Workers, AFL-CIO (General Dynamics Communications Co., Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 3, International Brotherhood of Electrical Workers, AFL-CIO and General Dynamics Communications Co., Inc. and Local 1109, Com- munications Workers of America, AFL-CIO. Case 2-CD-656 September 30, 1982 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by General Dynamics Communi- cations Co., Inc., herein called General Dynamics or the Employer, alleging that Local 3, Interna- tional Brotherhood of Electrical Workers, AFL- CIO, herein called Local 3, had violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in cer- tain proscribed activities with an object of forcing or requiring the Employer to assign certain work to employees it represents rather than to employees represented by Local 1109, Communications Work- ers of America, AFL-CIO, herein called Local 1109. Pursuant to notice, a hearing was held before Hearing Officer Mary Ann Mills on January 4, 1982. All parties appeared and were afforded full opportunity to be heard, to examine and cross-ex- amine witness, and to adduce evidence bearing on the issues. Thereafter, all parties filed 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 rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. The Board has considered the briefs and the entire record in this case, and hereby makes the following findings: I. THE BUSINESS OF THE EMPLOYER 1 The parties stipulated, and we find, that the Em- ployer is a California corporation and a wholly ' Local 3 contends that General Dynamics is not the relevant "Em- ployer" herein and lacks standing to pursue its charge against Local 3, because it subcontracted the work in dispute. However, as discussed herein, Local 3 focused its pressure on General Dynamics in its attempts to procure an award of this work. Accordingly, we find that General Dynamics has standing to pursue this charge. On August 5, 1982. United Technologies Communications Company (UTCC) filed with the Board a motion for substitution of the name of the Charging Party, submitting that the business operations of General Dy- namics Communications Company, Inc. (GDCC), were sold in an asset sale on July 23. 1982, to United Technologies Corporation, and that the business formerly conducted by GDCC is now being conducted by 264 NLRB No. 27 owned subsidiary of General Dynamics Corpora- tion, a Delaware corporation, engaged in the sale and installation of telephone equipment. During the past year, in the course of its operations, the Em- ployer purchased and received at its various New York jobsites products, goods, materials, and ser- vices valued in excess of $50,000 directly from firms located outside the State of New York. Ac- cordingly, we find that the Employer is an employ- er within the meaning of Section 2(2) of the Act, it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Local 3 and Local 1109 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute2 The dispute involves the installation of a tele- phone system for the law firm of Fox, Glynn and Melamed (Fox Glynn). The Employer contracted out a significant portion of this work to Triboro Telephonic Planning and Interconnect Inc. (Tri- boro). An official of the Employer testified that the Employer's own employees generally install and service the Employer's equipment; however, be- cause of commitments elsewhere, none of these em- ployees were available for the Fox Glynn project. Triboro, which previously handled other work for UTCC, a newly created subsidiary of United Technologies Corporation. The motion alleged that UTCC is now operating the same business, with the same personnel and collective-bargaining agreements, in the same lo- cations as previously operated by GDCC UTCC requests that the instant Decision and Determination of Dispute reflect this change On August 24, 1982, the Board issued a Notice To Show Cause why this motion should or should not be granted. UTCC and Respondent timely filed responses to this motion. UTCC urgcd that it is a successor to GDCC and therefore should be substituted as the Charging Party in this matter. The Board hereby denies UTCC's motion as lacking in merit. We note that Respondent's attempts to force assignment of the work in dispute to members were directed solely at GDCC We note further that in a relat- ed case issued this day, Local 3, International Brotherhood of Electrical Workers. AFL-CIO (General Dynamics Communications Co. Inc.), 264 NLRB No. 96, we denied a similar motion by UTCC. Moreover, we find it unnecessary to resolve the question of whether UTCC is a successor to GDCC during these 10(k) proceedings Should it prove necessary to re- solve this question in the future, we shall do so at that time. 2 The Employer charged Local 3 with violating Sec. 8(b)(4)i) and (iiXB) of the Act in a case related to the instant dispute. The hearing in that case was conducted by Administrative Law Judge Morns on No- vember 24, 25, 26, 27 and December 2, 1981, and the transcript and ex- hibits were received into evidence at the instant hearing, and provide much of the factual background recounted herein. We note that Local 3 was represented by the same attorney in that case, and had full opportu- nity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. 364 LOCAL 3, IBEW the Employer, employed members of Local 1109 to perform this work. At the time the project was to commence, a comprehensive renovation was underway at the building where Fox Glynn planned to locate. Morse Diesel, Inc., the general contractor for both the overall renovation of the building and the Fox Glynn project, contracted out the electrical work on both projects to Henry Paul Electric (Henry Paul), which employed members of Local 3. On Saturday, June 27, 1981,3 Triboro employees Fred Wise and Gene Phillips began work at the Fox Glynn project on the sixth and seventh floors of the building. They were soon approached by Henry Paul Foreman James DiTusa. When he no- ticed that they were not Local 3 members, he ex- pressed displeasure and suggested that they could not continue working at the site. DiTusa then left to make a telephone call. When he returned, he in- formed Wise and Phillips that they could continue working that day but he would investigate the situ- ation. The Triboro employees worked without further incident on Saturday and Monday. However, on Tuesday, June 30, the Local 3-represented electri- cians stopped working on the Fox Glynn project on the sixth and seventh floors, and turned off the electrical power thereon.4 DiTusa testified that he did this because he did not want to work with a "non-union outfit that was doing our work .... " Local 3-represented employees did not work on those floors for 3 days. On July 1, Peter Butawice of Morse Diesel tele- phoned Alan Johnson, a partner in Fox Glynn, and explained that Local 3-represented employees re- fused to work on the sixth and seventh floors as long as Local 1109-represented employees contin- ued installing the telephone system. Thereafter, Johnson and Butawice telephoned the Employer's operations supervisor, Peter Sarni, and informed him that, because of the work stoppage, Johnson did not want Local 1109-represented employees at the jobsite. The record further indicates that, on July 2, Morse Diesel sent a telegram to the build- ing landlord stating that Fox Glynn was employing installers who were not approved by Local 3, thus causing a delay in completing the electrical work. During the following week, Fox Glynn canceled the Employer's contract for the purchase and in- stallation of the telephone system. On December 23, 1981, pursuant to action by the Employer, Judge Weinfeld of the United States 3 All dates hereafter are in 1981 unless otherwise indicated. 4 The power was turned on and off at various times during the day. Wise testified that he could not use power tools and had to work without the benefit of overhead lights T here were no power problems on subse- quent days. District Court for the Southern District of New York issued an order enjoining Local 3 from com- mitting any acts in violation of Section 8(b)(4)(i) and (ii)(B) or (D) of the Act with respect to the in- stallation and maintenance of telephone equipment in the New York metropolitan area, pending the determination of the charges before the Board. B. The Work in Dispute The work in dispute consists of installing, testing, programming, and troubleshooting of the Focus Executive Electronic Private Automatic Branch Exchange, herein called the Switch, running and terminating cables between the Main Distribution Frame and the Switch, all cross-connections on In- termediate Distribution Frames, installing individu- al telephone units and all the cabling and connecting associated with the installation of the telephone units5 for the law firm of Fox, Glynn and Melamed, at One Broadway, New York, New York. C. Contentions of the Parties Local 3 contends that there is no jurisdictional dispute herein, asserting that the record contains no evidence that Local 3 ever demanded the work in dispute or took any action to secure it. The Employer and Local 1109 contend that Local 3's activities clearly indicate an attempt to force the Employer to assign the work in dispute to the employees it represents, especially when viewed in the context of similar campaigns by Local 3 to secure this type of work generally and specifically from the Employer, by means prohibit- ed by the Act. They contend that this work should be awarded to employees represented by Local 1109 because of collective-bargaining agreements, employer and area practice, the economy and effi- ciency of operations, skills, and employer prefer- ence. The Employer and Local 1109 further urge that the Board issue a broad award, asserting that the previous conduct of Local 3 demonstrates that disputes of a similar nature are likely to recur with regard to the Employer's assignment of work. ' The italicized phrase was inadvertently omitted from the charge in this case by the Employer, and consequently did not appear in the notice of hearing. However, at the outset of the hearing the Hearing Officer granted the Employer's motion to amend the notice of hearing to include this language. Local 3 excepts to the granting of this motion, contending that amending the notice of hearing at the hearing violated its due proc- ess rights. We find this exception without merit, noting that the Employ- er's counsel notified counsel for Local 3 of the proposed amendment sev- eral days prior to the hearing Thus, Local 3 was not surprised by the amendment at the hearing, and had adequate time to prepare its case with respect to the added language 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which an 8(b)(4)(D) charge has arisen. However, before the Board pro- ceeds with a determination of the dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there is no agreed-upon method, binding on all par- ties, for the voluntary adjustment of the dispute. As indicated above, on June 27 DiTusa informed the Triboro employees that Local 3 disapproved of their presence. DiTusa believed that the job of in- stalling the telephone system was "our [Local 3] work." Soon thereafter, Local 3-represented em- ployees refused to work on the same floors as em- ployees represented by Local 1109, and impeded their work by shutting off the electrical power. Subsequently, Morse Diesel contacted Fox Glynn and the landlord, informing them that Local 3's work stoppage resulted from the fact that Local 1109-represented employees were performing the work in dispute. Fox Glynn then canceled its con- tract with the Employer. Although there is no evidence that Local 3 di- rectly demanded the work, the chain of events de- scribed above cannot be explained as mere coinci- dence. We find there is reasonable cause to believe that Local 3 encouraged its members to engage in a work stoppage to induce Fox Glynn to terminate its contract with the Employer, in order to pres- sure the Employer into assigning its work to em- ployees represented by Local 3 rather than by Local 1109. Local 3 clearly bears responsibility for the work stoppage. We note that the Board has found in pre- vious cases that Local 3's bylaws encourage illegal secondary activity by employees it represents in support of its jurisdictional claims.6 Additionally, Local 3 has not attempted to discipline DiTusa and his coworkers in any way, although the IBEW constitution and Local 3's bylaws prohibit unau- thorized work stoppages. Our conclusion is strengthened when viewed in light of other disputes involving Local 3. In an ad- jacent building during 1980 and 1981, Local 3 6 See, e.g., I.ocai Union 'No. 3 International Brotherhood of Electrical Worker,. AFI.-CIO (L. M. Eric.sorl lelecommunications, Inc.. New York Division), 257 NLRB 1358 (1981), ALJD, sec. IlI,D: Local Union Ao. 3, International Brotherhood of Electrical Workers .4FL-CIO (Eastern States Electrical Contractors, Inc.), 205 NLRB 270, 272 (1973) The maintenance of the bylaws was not itself a violation, but only constituted the induce- ment and encouragement element of the 8(bh4) violation which occurs when the members, acting in :ccordance with the bylaw, cease to work for a proscribed object Art. 13, sec. 12, of these bylaws states: No member is to give away work coming under the jurisdiction of this Local, or to allow any other tradesmen to do work coming undet this Lcal's jurisdiction forced a customer of the Employer to withdraw certain telephone installation work from the Em- ployer by threatening work stoppages and using slowdown tactics. 7 Additionally, in recent years Local 3 has been found by the Board to have vio- lated Section 8(b)(4)(B) and (D) in numerous other cases in the New York area.8 In view of the conduct and background de- scribed above, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred.9 As there is no evidence demonstrating that an agreed-upon method for the voluntary adjustment of the dispute exists, 10 we find that the dispute is properly before the Board for a determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to relevant factors."' The Board has held that its determination in a ju- risdictional dispute is an act of judgment based on commonsense and experience, reached by balanc- ing those factors involved in a particular case.' 2 The following factors are relevant in making the determination of the dispute before us:'3 1. Collective-bargaining agreements General Dynamics and Triboro have a collec- tive-bargaining agreement with Local 1109 and recognize it as the exclusive representative for em- 7 The Employer filed charges with the Board alleging violations of Sec. 8(b)(4)(B) and (D), but the case terminated when Local 3 filed a dis- claimer limited to the work involved therein. I See, e.g., Local Union No. 3, International Brotherhood of Elecrincal Workers, AFL-CIO (L. M. Ericsson Telecommunication, Inc.). supra, in which the Board adopted the Administrative Law Judge's finding that Local 3 maintains a "proclivity for engaging in unlawful secondary boy- cott activity in connection with claims to disputed electrical work, in- cluding such work performed with respect to telephone systems installa- tion." ALJD. the "Remedy" section; Local Union No. 3. International Brotherhood of Electrical Workers. AFL-CIO (Forest Electric Corp.), 205 NLRB 1102, 1105 (1973), wherein the Administrative Law Judge stated that, "[t]he propensity of Local 3 and its sister local in the New York metropolitan area, Local 25, to engage in illegal action in support of their claims to certain telephonic installation work is well established" and cases cited therein and, Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Teltronics, Inc. ), 217 NLRB 834 (1975). 9 International Longshoremen's Association, AFL-CIO. its affiliated Locals 799. 800, 805 and 1066. and its Boston District Council (Coldwater Seafood Corporation), 237 NLRB 538 (1978); Sheet Metal Workers' Inter- national Association, Local Union No. 41, AFL-CIO (B & W Metals Com- pany, Inc.), 231 NLRB 122 (1977). 'O Local 3 elicited testimony at the hearing suggesting that both Local 3 and Local 1109 are subject to the AFL-CIO Internal Disputes Plan, but produced no evidence that the Employer would be bound by an AFL-CIO determination of the dispute. LI .L.R. B. v. Radio & Television Broadcast Engineers Union. Local 1212, International Brotherhood of Electrical Workersr, AFL-CIO [Colum- bia Broadcasting System], 364 U.S. 573 (1961). 12 International Association of Machinists. Lodge No. 1743, AFL-CIO (J. A. 'ones Construction Company), 135 NLRB 1402 (1962). i Local 3 contended that no dispute exists herein and did not present any evidence with respect to the merits of the dispute. 366 LOCAL 3, IBEW ployees classified as "Installer Technicians, Com- munications Technicians, and Senior Communica- tions Technicians." The record indicates that em- ployees in these categories regularly perform the work in dispute. Accordingly, we find that this factor favors assignment of the disputed work to employees represented by Local 1109. 2. Employer and area practice Pursuant to the collective-bargaining agreements, the Employer and Triboro regularly employ mem- bers of Local 1109 to perform work similar to that disputed herein. The record further indicates that employees of approximately 40 other private tele- phone interconnect companies are represented by Local 1109. Accordingly, we find that the factor of employer and area practice favors an award to em- ployees represented by Local 1109. 3. Skills Officials of the Employer testified that employ- ees represented by Local 1109 are capable of per- forming this work. There is no evidence on the record that individuals represented by Local 3 have the ability and training to perform this work. Accordingly, we find that this factor favors an award to employees represented by Local 1109. 4. Efficiency and economy Sarni testified that by using its own employees, or employees of trusted subcontractors, the Em- ployer can promise customers that the same person who installs the system will perform maintenance and service work upon it pursuant to its 1-year warranty agreement. Since continuity of personnel promotes efficient post-installation service, we find that this factor favors an award to employees rep- resented by Local 1109. 5. Employer preference The Employer assigned the work in dispute to employees represented by Local 1109. The record clearly indicates that the Employer is satisfied with and maintains a preference for this assignment. Ac- cordingly, we find that the factor of employer pref- erence favors an award to employees represented by Local 1109. Conclusion as to the Merits of the Dispute Upon the record as a whole and after full consid- eration of all relevant factors involved, we con- clude that employees represented by Local 1109 are entitled to perform the work in dispute. We reach this conclusion relying on all of the above factors. Scope of the Determination Where a union demonstrates a proclivity to engage in unlawful conduct and there is an indica- tion that the dispute regarding an employer's work is likely to recur, the Board will issue an award broad enough to encompass the geographical area in which an employer does business and in which the jurisdictions of the competing unions coin- cide. 4 Considering these standards and Local 3's history of participation in similar disputes generally and with regard to the Employer's work, it is clear that such an award is warranted here. Accordingly, our determination will cover assignments of the disputed work in the area in which General Dy- namics Communications Co., Inc., operates and in which the geographical jurisdictions of Local 3 and Local 1109 coincide. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees of General Dynamics Communica- tions Co., Inc.. who are represented by Local Union 1109, Communications Workers of America, AFL-CIO, and employees of any subcontractor employed by General Dynamics Communications Co., Inc., who are represented by Local 1109, Communications Workers of America, AFL-CIO, are entitled to perform the work of installing and servicing telephone equipment sold, leased by, or under service agreement with General Dynamics Communications Co., Inc., wherever the jurisdic- tion of Local 3, International Brotherhood of Elec- trical Workers, AFL-CIO. and Local 1109, Com- munications Workers of America, AFL-CIO, coin- cide. 2. Local 3, International Brotherhood of Electri- cal Workers, AFL--CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require General Dynamics Communica- tions Co., Inc., to assign the disputed work to em- ployees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 3, Interna- tional Brotherhood Electrical Workers. AFL-CIO, 14 United Association of Journeymen and .Ipprentices of the Plumbing and Pipefitting Indu'stry oj rhe United States and Canada. Local No. 155 (Allied-McCarty Supplv Co.). 222 NLRB 796, 8(') (1976), General Truck Drivers. Warehouseme;n and Helper' LEocal Union .a. 5, a,/w International Brotherhood of leomnstrer ChaufJeurs, UWarehousemen and Helpers of Amer- ica. Ind. (Grinnell Fire Protection Systems Company. In, i, 221 NLRB 1186, 1189 (1975). 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall notify the Regional Director for Region 2, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disput- ed work in a manner inconsistent with the above determination. 368