Electrical Workers Ibew Local 3 (Mike G Electric)

ELECTRICAL WORKERS IBEW LOCAL 3 (MIKE G ELECTRIC) Local 3, International Brotherhood of Electrical Workers, AFL-CIO and Mike G. Electric Corp. and Local 150, Fur, Leather and Machine Workers, United Food and Commercial Work- ers International, AFL-CIO. Case 2-CD-712 28 April 1986 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN The charge in this Section 10(k) proceeding was filed on 29 May 1984 by the Employer, alleging that the Respondent, Electrical Workers Local 3 (Electrical Workers), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Food and Commercial Workers Local 150 (Local 150). The hearing was held on 9 July 1984 before Hearing Officer Jacob Schraeter. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. The hear- ing officer did not err in admitting hearsay testimo- ny because the hearsay was neither uncorroborated nor double hearsay which solely supported a find- ing of reasonable cause.I The hearing officer also properly admitted evidence concerning the Em- ployer's membership in the Industrial Electrical Contractors Association (IECA), its multiemployer bargaining association , because this membership is relevant to determining the viability of the Em- ployer's collective-bargaining agreement with Local 150. The hearing officer also did not abuse his discretion in excluding wage and efficiency evi- dence about the Employer's operations which was unrelated to the jobsite. Because this evidence was purportedly elicited to compare the efficiency of employees represented by the Electrical Workers with that of employees represented by Local 150, and because the Electrical Workers declined to come forward with either its own witnesses or other data concerning its own wage rates to sub- stantiate this comparison, the hearing officer's deci- sion to exclude the elicited evidence is consistent with adjudicative accuracy and efficiency. On the entire record, the Board makes the following find- ings. See Operating Engineers Local 4 (Henley-Lungren), 268 NLRB 1228 (1984), Bricklayers Local I (St Louis Home Insulators), 209 NLRB 1072, 1075 (1974) 1. JURISDICTION 521 The Employer, a New York corporation, with its principal place of business in Oceanside, New York, is a subcontractor engaged in the installation of electrical conduit, cable, devices, and fixtures. The Employer contracted with Compusite Turn- key Construction, Inc. (Compusite), a general con- tractor, to perform the disputed work. During the calendar year before the dispute oc- curred, the Employer purchased supplies valued in excess of $50,000 from various wholesalers in New York who had purchased the supplies directly from outside the State of New York. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction. II. THE DISPUTE A. Background and Facts of Dispute On 7 May 1984, pursuant to a subcontract with Compusite, the Employer began the work of in- stalling electrical conduit, cable, devices, and fix- tures at 305 East 46th Street, New York, New York (jobsite). Through its membership in the In- dustrial Electrical Contractors Association (IECA), effective 4 October 1983, the Employer was a party to a collective-bargaining agreement with Local 150. On 8 May 1984, according to the testimony of Michael Greenfield, the Employer's president, a man identifying himself as Elliot, a shop steward for the Electrical Workers, indicated to Greenfield on the telephone that the Electrical Workers claimed the disputed work and that Compusite should replace the employees at the jobsite with employees represented by the Electrical Workers. Greenfield also testified that, during this telephone conversation, Elliot apparently thought that he was talking to a Compusite employee. According to tes- timony by Greenfield, Compusite Project Manager Bonito, and Roach, the Employer's foreman, within the same week in May and continuing almost every day into mid-June, gatherings of Electrical Workers, numbering between 25 and 50 men, entered and attempted to obstruct the jobsite. Bonito reported that several demands and threats were made during these gatherings Elliot threat- ened to be back at the jobsite "in numbers, every day" until the Employer's electricians were off the job. Electrical Workers Shop Steward James Pa- pandrais warned that, "You do a lot of work with Local 3 and this might inhibit relationships." Bonito relayed several of these threats to the Em- ployer. The Employer responded to the threats by reporting them to Local 150 President Henry 279 NLRB No. 72 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foner. Foner asked for and received confirmation of these threats from a Local 150 business agent. Bonito responded to these threats by both discon- tinuing elevator access to the jobsite and directing an employee to call the police. To keep Electrical Workers members and representatives from ob- structing the jobsite, the police eventually erected barricades. B. Work in Dispute The disputed work involves the installation of electrical conduit, cable, devices, and fixtures on a renovation job.2 C. Contentions of the Parties The Employer contends that reasonable cause exists to believe that the Electrical Workers violat- ed Section 8(b)(4)(D). It asserts that by virtue of its membership in a multiemployer bargaining associa- tion, the IECA, it had a collective- bargaining agreement with Local 150 to perform the work in dispute. The Employer further contends that it does not have a collective-bargaining agreement with the Electrical Workers and that related con- siderations favor its continued employment of em- ployees represented by Local 150. These consider- ations include the Employer's preferences and past practices, the comparative expertise of the Employ- er's employees in electrical renovation work, and the efficiency advantages of retaining a work force which had enabled the Employer to complete a substantial part of the disputed work. The Employ- er also contends that, because similar disputes in- volving the same disputed work are likely to recur, the Board's jurisdictional award should be broad enough to include all electrical renovation work or conduit, cable, devices, and fixtures, wherever lo- cated, by the Employer. The Electrical Workers contends that no suffi- cient restraint of or threat to the Employer has been attributed to it and also that even if such a threat had been attributed to the Electrical Work- ers, there was no accompanying restraint of the Employer that violated the Act. The Electrical Workers also contends that the Section 10(k) hear- ing was tainted by procedural errors, including the admission of hearsay evidence, the exclusion of wage and efficiency evidence unrelated to the job- site, and the admission of evidence regarding the Employer's membership in the IECA. The Electri- cal Workers further asserts that the dispute in this 2 Our definition of the work in dispute is narrower than that of the notice of hearing because Local 150 and the Employer admitted that the two Unions had agreed to allocate work between themselves on the basis of whether it was on a new or a renovation site case is moot because the work has been completed and disclaimed. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be established both that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of their dispute. Regarding the latter point, the record reveals no agreed-upon method among the parties for the resolution of the dispute. The record also reveals that reasonable cause exists to believe that the Electrical Workers violat- ed Section 8(b)(4)(D). The Electrical Workers' as- sertion that its alleged threat to the Employer was permissible because it was relayed by a telephone declarant who did not know he was speaking to the Employer has no merit. A threat's impermissi- bility under Section 8(b)(4)(D) is measured not by whether the declarant knew that he was speaking to the Employer per se, but by whether the fore- seeable object of the declarant's statements and conduct was to compel the assignment of the dis- puted work to employees in a given labor organiza- tion rather than to other employees in a particular trade or labor organization.3 We find that when Electrical Workers Shop Steward Elliot indicated to the Employer on the telephone that the Electrical Workers claimed the disputed work and that the Compusite should re- place employees represented by Local 150 with employees represented by the Electrical Workers, the foreseeable object of Elliot's statement was to force or require that replacement. We also find that these statements, combined with the Electrical Workers' admitted obstructionist gatherings at the jobsite from early May to mid-June 1984 and ac- companied by the Electrical Workers' threats to Compusite's project manager, set forth above, con- stitute reasonable cause to believe that the Electri- cal Workers violated Section 8(b)(4)(D). We also find that the Electrical Workers' pur- ported disclaimer is ineffective. The record estab- lishes that at the close of the hearing on 11 Sep- tember 1984, a substantial portion of the disputed work had been completed. The Electrical Workers also admits, in its brief, that 1 month later the work had been "long since completed." Because there was, at the time the Electrical Workers attempted to disclaim the work, little work left to disclaim, it s See Longshoremen IL WU Local 19 (West Coast Container Service), 266 NLRB 193, 195 (1983), Sheet Metal Workers Local 41 (B & W Metals Co), 231 NLRB 122 (1977) ELECTRICAL WORKERS IBEW LOCAL 3,(MIKE G ELECTRIC) 523 is evident that the Electrical Workers did not seek to effectively disclaim the disputed work but sought instead to escape the consequences of its im- proper actions. Under these circumstances, the Electrical Workers' attempted disclaimer is hollow and ineffective because it was presented solely to avoid an authoritative decision on the merits.4 We, therefore, find reasonable cause to believe that a violation of Section 8(b)(4)(D)• has occurred and that there exists no agreed method for volun- tary adjustment of the dispute within the meaning, of Section 10(k) of the Act. Accordingly, we find' that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an af. firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 Q. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certifications and collective-bargaining agreements There was no evidence that the Electrical Work- ers or Local 150 had been certified by the Board as the collective-bargaining representative of the Em- ployer's employees. Through the Employer's ongo- ing membership in the IECA, however, it was -a party to a collective-bargaining agreement with Local 150 which encompassed the work in dispute. We find that this factor favors the award of the disputed work to the employees represented by Local 150. 2. Company preference and past practice The record indicates that the Employer had em- ployed its electricians before the disputed work was initiated on 7 May 1984. The record also indi- cates that the Employer favors retaining its current work force. This factor consequently favors the award of the disputed work to employees repre- sented by Local 150. 4 Sprinkler Fitters Local 703 (Aircon Carbon), 261 NLRB 1122, 1124 (1982) 3. Area practice The sole evidence of area practice reveals that the Electrical Workers performed most of the elec- trical work for Compusite , the Employer's general contractor, : in the New York City metropolitan area. The record also reveals both that the Em- ployer has never used employees represented by the Electrical Workers to perform the disputed work and that a past agreement between Local 150 and the Electrical Workers allowed Local 150 to perform electrical renovation work. The factor of area practice consequently favors neither group. 4. Relative skills The Electrical Workers did not introduce any evidence of its relative skills in electrical renova- tion work on conduit, cable, devices, and fixtures. Because all of the employees of the Employer have previous trade school electrical training, and be- cause the Employer had employed them on previ- ous renovation jobs, we conclude that the factor of relative skills and training favors the employees represented by Local 150. 5. Economy and efficiency of operations The record reveals that the Employer was awarded at least one competitive bid in the past while employing a work force represented by Local 150. Because the Employer testified that re- placing a work force which had completed a sub- stantial part of the disputed work would be ineffi- cient, and because the Electrical Workers • did not introduce any evidence that its members could per- form the work as or more efficiently, this factor favors the employees represented by Local 150. Conclusions After considering all the relevant factors, we conclude that employees represented by Local 150 are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's collective-bargaining agreement with Local 150, the Employer's preferences and past practices, the comparative expertise of the Employer's current work force, and the efficiency advantages of retain- ing a work force which had enabled the Employer to complete a substantial part of the disputed work. In making this determination, we are awarding the work to employees represented by Local 150, not to that Union or its members. Scope of Award The Employer requests that the Board's determi- nation be broad enough • to include all of the work in dispute, wherever located, by the Employer. Be- 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause the record does not support a finding, re- quired for the granting of a broad order, that the dispute promises to recur in a broader geographic area than the jobsite, our determination in this case is limited to the specific site where the instant dis- pute arose.5 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Mike G. Electric Corp., repre- sented by Fur, Leather and Machine Workers, United Food and Commercial Workers Internation- 5 Elevator Constructors Local I (Elevator Industries Assn), 229 NLRB 1200, 1203 (1977) al Local 150, AFL-CIO, are entitled to perform all electrical renovation work on conduit, cable, de- vices, and fixtures at 305 East 46th Street, New York, New York. 2. International Brotherhood of Electrical Work- ers Local 3, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Mike G. Electrical Corp. to assign the disput- ed work to employees represented by it. 3. Within 10 days from this date, Electrical Workers Local 3, AFL-CIO shall notify the Re- gional Director for Region 2 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the dis- puted work in a manner inconsistent with this de- termination.