Local 211, International Brotherhood Of Electrical Workers, Afl-Cio

930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 211, International Brotherhood of Electrical Workers, AFL-CIO and Sammons Communica- tions of New Jersey, Inc. Case 4-CD-720 The parties stipulate, and we find, that Local 211 and Local 1448 are labor organizations within the meaning of Section 2(5) of the Act. 16 December 1987 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed 8 May 1987 by the Employer, alleging that the Respondent, International Brotherhood of Electrical Workers, Local 211, violated Section 8(b)(4)(D) i of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to employees rep- resented by International Brotherhood of Electrical Workers, Local 1448. The hearing was held on 15 and 18 July 1987 before Hearing Officer Joel H. Levinson. 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.2 On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Employer, Sammons Communications, a New Jersey corporation , is engaged in the develop- ment, maintenance, and operation of cable televi- sion systems in the State of New Jersey . Its main office is located in Pleasantville, New Jersey. During the past year Sammons received gross rev- enues in excess of $500,000 and purchased and re- ceived goods and services valued in excess of $50,000 directly from points outside the State of New Jersey. The parties stipulated to facts which satisfy the Board's jurisdictional requirements. We find that Sammons Communications is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. ' The Employer also filed an 8(b)(4)(B) charge against Local 211 On 12 June the Board sought injunctive relief in Federal district court under Sec 10(1) of the Act Peter W Hirsch, Regional Director v IBEW, Local 211, C A No 87-2234, D N J On 15 June the Board and Local 211, with court approval, entered into a stipulation and order, pursuant to which Local 211 promised not to engage in similar unlawful conduct pending resolution of the charges 2 Local 211 filed a motion to dismiss the case regarding Baker Installa- tions and Redvision Cable, Inc because they were not represented at the hearing We deny the motion Redvision Cable, Inc 's president, Ronald Kessler, was present and testified at the hearing Baker Installations' gen- eral supervisor, Raymond Boal, was present and testified at the hearing II. THE DISPUTE A. Background and Facts of Dispute Sammons operates a cable television delivery system in New Jersey. Sammons "prewires" (i.e., installs wiring and outlets inside walls during con- struction) commercial buildings for cable delivery of cable television programming. Sammons regularly subcontracts some of its commercial prewire work to Baker Installations and to RT/Katek Corporation (RTK). RTK sub- contracts prewire work to Redvision Cable, Inc.3 The employees of Sammons, Baker, RTK, and Redvision are represented for purposes of collec- tive bargaining by Local 1448. Since at least 1965 Local 1448 has been the collective-bargaining rep- resentative of Sammons' employees. The current collective-bargaining agreement runs from 14 De- cember 1985 to 31 May 1988. In December 1986 Sammons expanded its oper- ations by purchasing cable systems owned and op- erated by Cablentertainment. Cablentertainment's employees were represented for purposes of collec- tive bargaining by the Communications Workers of America (CWA). When Sammons purchased the systems in December, Sammons assumed the col- lective-bargaining agreement that Cablentertain- ment had with CWA. It appeared that the consoli- dation, which was planned to go into effect on March 1987, would essentially abolish the identity of the separate bargaining units. On 4 February 1987 Sammons filed an RM petition with the Re- gional Office, seeking an election between Local 1448 and the CWA as to which union would repre- sent the consolidated group of 106 employees. An election was held on 10 April 1987. A major- ity of the ballots were cast in favor of Local 1448, which was certified on 24 April 1987. On 18 May Sammons and Local 1448 entered into a memoran- dum of understanding. The memorandum reactivat- ed (with modifications) the agreement which had been in effect between Sammons and Local 1448 prior to the consolidation. Before Sammons' purchase of some of Cablenter- tainment's systems, Cablentertainment (in early 1984) had purchased Atlantic Coast Cable. Atlantic had employed 16 members of Local 211. Eleven of these Local 211 members either took management jobs with Cablentertainment, transferred into the s The record indicates that "RT Cable" subcontracted the work to Redvision It appears that RT Cable is the same corporation as RT/Katek Corporation 287 NLRB No. 94 ELECTRICAL WORKERS IBEW LOCAL 211 (SAMMONS COMMUNICATIONS) 931 CWA unit, or quit. The five remaining Local 211 members were hired by a cable contractor named L.D.W, Inc. (LDW). Cablentertainment agreed to provide prewire work for these five men by using contractors who had agreements with Local 211. The agreement ran from 1 October 1984 to 30 Sep- tember 1986; a modified version ran from October 1986 to October 1987 This agreement between Cablentertainment and Local 211 (reduced to writing in a letter from Cab- lentertainment to Local 211) listed certain towns and cities to which it would apply and it limited the work to multiple dwelling units more than four stories high After Sammons purchased Cablenter- tainment, Sammons honored the terms of the letter agreement, but it never formally assumed or adopt- ed it. Sammons entered into an agreement with LDW, which had a collective-bargaining agree- ment with Local 211 and which employed the five former Atlantic employees' Sammons has consist- ently assigned work covered by the letter agree- ment to LDW. In early 1987 Sammons was under contract with the Admiral Royal Conference Center to install cable television wiring at a motel building project known as the Admiral Royal in Egg Harbor Township Although this building was more than four stories, it was not one of the geographical lo- cations listed in the informal letter agreement be- tween Sammons and Local 211. Sammons utilized the services of RTK to do the wiring at the Admiral Royal. RTK subcontracted to Redvision. Redvision employees Smithline and Kessler started the prewiring on 12 March. Smith- line and Kessler completed the prewiring of four and a half floors of the Admiral Royal. Then in mid-April the two men were asked by George Fen- wick, Local 211's business agent, to see their union cards. After the Local 1448 cards were presented, Fenwick stated that he did not recognize Local 1448. He told the two men that "it wouldn't be in your best interests to go into this building," and no matter how much they were earning that "it wouldn't be worth it to be on this job." On 12 April when Sammons General Manager Piperato learned of this incident, he telephoned Ed Egan, the construction superintendent at the Admi- ral Royal jobsite. According to Piperato, Egan told him that Fenwick had threatened that if the men represented by Local 1448 did not leave the job- site, there would be a job action. Also in the spring of 1987, Sammons was install- ing wiring in a four-story dwelling at 31 North Virginia Avenue in Atlantic City. The dwelling was being renovated by Massaro Corporation. As this was a four-story building, it was not covered by the informal letter agreement with Local 211. Sammons subcontracted the prewiring work to Baker. Baker employees Kahlia and Swingle ar- rived at the jobsite on 30 March.4 Electricians rep- resented by Local 211 were already at the jobsite doing electrical work. Shortly after the Baker employees started to work they were approached by a Local 211 stew- ard. The steward asked to see their union cards. The Baker employees explained that they were members of Local 1448 but had not yet received their cards. Shortly after this conversation between the Baker employees and Local 211's steward, Massaro's job superintendent, Curt Fisher, asked the Baker employees to leave the jobsite. They did. On 29 April Baker employees Boal and Brown went back to the North Virginia Avenue jobsite to attempt to continue the prewiring work. The Baker employees were approached by Local 211's stew- ard and asked to produce their union cards. Em- ployee Boal produced a receipt showing member- ship payments to Local 1448. Shortly after this conversation between the Baker employees and the Local 211 steward, Curt Fisher, Massaro's job su- perintendent, told the Baker employees to stop working. Fisher told employee Boal that "the electrical contractor and the electrical union workers told him that if I [Baker employee Boal] continue to work after lunch they weren't coming back " Sammons then reassigned the prewiring work. Redvision employees Kessler and Smithline went to the North Virginia Avenue jobsite. Shortly after they started to work, George Fenwick, Local 211's business agent, threatened to bring them up on charges with the International. The two Redvision employees left the jobsite. They returned the next day, but were told to leave by Fisher.5 On 4 May Sammons Project Coordinator Joe Montoro went to the jobsite with Kessler and Smithline. Montoro talked to Fisher about the problems with Local 211. Fisher told Montoro that he had been ordered by his supervisor, Degus, to tell the Redvision employees to leave the jobsite. Montoro then telephoned Degus who said that if the Local 1448 men did not leave the jobsite, Local 211 had threatened to strike and to picket both 31 North Virginia Avenue and the Flagship. The Flagship was another job of Massaro Corporation on which Local 211 was working. 4 The notice of hearing states "on or about 29 March 1987 " 5 Kessler and Smithhne testified that when they returned to the jobsite the cables, which they had installed the previous day, had been cut Smithline testified that the jobsite was surrounded by a fence and pa- trolled by a security guard 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On 5 May Piperato called Fenwick concerning the North Virginia Avenue job. Fenwick told Pi- perato that Local 211 considered itself the "police" and had the power to shut jobs down. On 7 July, Mark Boban, Baker's regional manag- er, went to the North Virginia Avenue jobsite. He talked with George Fenwick who said that Local 211 "was going to do all the cable work in Atlantic County and . . . nobody else would do it." Fen- wick also told Boban that Local 211 was "going to use 31 North Virginia Avenue as an example," be- cause, as Boban testified, Fenwick said that it was Local 211's territory and they were going to defend it and they were "not going to let it rest." Fenwick then told Boban that all of Atlantic County was 211's territory and that a couple of Local 211's members "could be nasty."6 B. Work in Dispute The work in dispute consists of commercial cable installation work at the Admiral Royal Con- ference Center construction site in Pleasantville and at 31 North Virginia Avenue, Atlantic City, New Jersey. C. Contentions of the Parties The Employer contends that reasonable cause exists to believe that Local 211 violated Section 8(b)(4)(D) of the Act; and that the work in dispute should be awarded to Sammons ' employees repre- sented by Local 1448 and to its subcontractors' em- ployees represented by Local 1448, based on the factors of Employer preference and past practice, the Employer's collective-bargaining agreement with Local 1448, skill, and economy and efficiency of operation. The Employer argues that the Board should issue a broad order covering all the Employer's work in Atlantic and Cape May Counties, New Jersey, in addition to the work now in dispute. The Employer argues that in light of Local 211's past actions, vis-a-vis Sammons and other employers, its present conduct , and its promises of future illegal acts, the Board should issue a broad order. The Employer notes that this is the second case involv- ing alleged attempts by Local 211 to force Sam- mons to reassign work from Local 1448-represent- ed employees . See Electrical Workers IBEW Local 211 (Sammons Communications), 271 NLRB 330 (1984). Local 211 contends that there is no reasonable cause to believe that the Act has been violated be- cause the only evidence indicating a violation of ' This conversation took place after Local 211 had entered into the stipulation and order on 12 June in which it promised not to engage in unlawful conduct pending resolution of Sammons' charges Section 8(b)(4)(D) was hearsay or double hearsay. In the alternative, Local 211 contends that the em- ployees whom it represents should be awarded the work. 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 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 for voluntary set- tlement of the dispute. There is evidence that - At the beginning of this dispute, employees represented by Local 1448 had been assigned to perform the work in dispute. Local 211, through its stewards and its business agent, Fenwick, claimed the work for employees it represents . Local 211 threatened the employees represented by Local 1448 with violence if they did not leave the Admiral Royal jobsite and the 31 North Virginia Avenue jobsite. In a telephone con- versation between Fenwick and Piperato , Fenwick told Piperato that Local 211 had the power to shut Local 1448's jobs down . Fenwick\later told Baker Regional Manager Boban that Local 211's members "could be nasty." No evidence was produced at the hearing of an agreed-upon method for the voluntary adjustment of the instant dispute. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D ) has occurred 7 and that there exists no agreed -upon method for voluntary 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 deter- mination. ' in concluding that the "reasonable cause " requirement has been met, we need not and have not relied on "double hearsay " We have relied on the following events Fenwick's conversation with Redvision employees Kessler and Smdhlme in which Fenwick told them it would not be in their best interests to work on the Admiral Royal jobsite, Fenwick telling Kessler and Smithline to leave the 31 North Virginia Avenue jobsite, Fenwick telling Baker Regional Manager Bohan that the 31 North Vir- ginia Avenue jobsite was just an example and that Local 211 would not let the matter rest, and Fenwick telling Sammons General Manager Pi- perato that there were certain areas in which no one but Local 21 I's members would work We find that this testimony substantiates a finding of "reasonable cause " See Electrical Workers IBEW Local 3 (Mike G Electric), 279 NLRB 521 ( 1986), Iron Workers Local 86 (Kulama Erectors), 264 NLRB 166 (1982) Accordingly, this case is distinguishable from Operating Engineers Local 4 (Henley-Lungren), 268 NLRB 1227 (1984) There, in quashing the notice of hearing, the Board found that only "double hearsay " evidence was offered to support a finding of reasonable cause and that such evi- dence was too insubstantial to support the necessary finding ELECTRICAL WORKERS IBEW LOCAL 211 (SAMMONS COMMUNICATIONS) 933 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 (J. A. Jones Construction), 135 NLRB 1402 (1962) The following factors are relevant in making the determination of this dispute. 1. Certification and collective-bargaining agreement Neither Sammons nor its subcontractors have collective-bargaining agreements with Local 211. Local 211 has never been certified as the collec- tive-bargaining representative for any of Sammons' employees. Local 1448 is certified as the exclusive representative of Sammons' employees. A succes- sion of agreements have been entered into by Sam- mons and Local 1448 Local 1448 also represents the employees of Sammons' subcontractors: Baker, RTK, and Redvision. Sammons' collective-bargaining agreement with Local 1448 specifically includes the kind of com- mercial cable installation work in dispute. Although Sammons' informal letter agreement with Local 211 covered prewire work, it contained geographical and height restrictions. Neither of the contested jobsites was covered by the agreement. This factor favors an award of the disputed work to employees represented by Local 1448. 2. Company preference and past practice Sammons prefers that the work in dispute be done by employees represented by Local 1448. Sammons' past practice is to use its employees rep- resented by Local 1448 or to subcontract out the work to companies whose employees are represent- ed by Local 1448.8 Sammons has in the past con- tracted work to LDW, whose employees are repre- sented by Local 211. However, the work contract- ed out fell within the informal letter agreement be- tween Sammons and Local 211. The work in dis- pute does not fall within the letter agreement. This factor favors the award of the work in dispute to employees represented by Local 1448. 8 Although neither subcontractor testified about its preference, we note that both initially assigned the work of prewiring to employees represent- ed by Local 1448 Under these circumstances, we infer that the subcon- tractors also preferred to assign the work to Local 1448-represented em- ployees 3. Area practice The record indicates that commercial. cable in- stallation has been performed in Atlantic County by employees represented by Local 1448 and by employees represented by Local 211. Therefore, this factor does not favor awarding the disputed work to either group of employees. 4. Relative skills Both the employees represented by Local 1448 and the employees represented by Local 211 are electricians. However, the employees represented by Local 1448 work almost exclusively with co- axial cable. The physical properties of coaxial wire are different from the physical properties of electri- cal wire. The employees represented by Local 1448 have consistent daily experience with "prewiring," which the employees represented by Local 211 do not have Therefore, we find that this factor favors the award of the disputed work to employees rep- resented by Local 1448. 5. Economy and efficiency of operation Sammons General Manager Piperato testified that it is more economical and efficient for the Em- ployer to use its own employees represented by Local 1448 or to subcontract its work to companies whose employees are represented by Local 1448. Subcontractors Baker and RTK charge Sammons on a piece rate basis, while other subcontractors whose employees are represented by Local 211 charge an hourly rate. On jobs performed by Local 211 (i.e., work sub- contracted to LDW) Sammons has been required to pay on an hourly rate basis for a nonworking foreman. A nonworking foreman is not required by Local 1448. Therefore, this factor favors awarding the disputed work to employees represented by Local 1448. Conclusions After considering all the relevant factors, we conclude that employees represented by Local 1448 are entitled to perform the work in dispute. We reach this conclusion relying on the certifica- tion and collective-bargaining agreement between Sammons and Local 1448, company preference and past practice, relative skills, and economy and effi- ciency. In making this determination, we are awarding the work to employees represented by International Brotherhood of Electrical Workers Local 1448, not to that Union or its members. 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Scope of the Award The Employer contends that the determination should encompass all commercial cable installation work in Atlantic and Cape May Counties. For the Board to issue a broad, areawide award, there must be evidence that the disputed work has been a con- tinuing source of controversy in the relevant geo- graphic area and that similar disputes are likely to recur. There must also be evidence which demon- strates that the charged party has a proclivity to engage in unlawful conduct to obtain work similar to the disputed work. The evidence demonstrates that assigning work similar to the disputed work will likely continue to be controversial, as the Employer intends to con- tinue assigning the disputed work to employees represented by Local 1448, and Local 211 appar- ently intends to "demand" that the work be as- signed to its members. There is evidence that Local 211 regards the commercial cable installation work in the Atlantic and Cape May Counties area to belong to Local 211. We conclude that Local 211's threat to defend its work and cause trouble on every other Sam- mons job indicates that the dispute may recur on other Sammons jobsites. Such a threat, coupled with the prior jurisdictional dispute, i.e., Electrical Workers IBEW Local 211 (Sammons Communica- tions), 271 NLRB 330 (1984), over Sammons work between Local 1448 and Local 211, justifies a broad order.9 Accordingly, and based on all the above, and the record as a whole, our determination in this case applies to all similar disputes concerning work at Sammons sites where the geographical jurisdictions of the International Brotherhood of Electrical Workers, Local 1448 and Local 211, coincide, to wit: Atlantic and Cape May Counties, New Jersey. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Sammons and its subcontractors represented by Local 1448 are entitled to perform prewiring cable work at the Admiral Royal in Pleasantville, New Jersey, and 31 North Virginia Avenue, Atlantic City, New Jersey, and at any other Sammons' project where the jurisdictions of the International Brotherhood of Electrical Work- ers, Local 1448 and Local 211 coincide, to wit: At- lantic and Cape May Counties, New Jersey. 2. Local 211 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Sammons or its subcontractors to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Local 211 shall notify the Regional Director for Region 4 in writ- ing whether it will refrain from forcing the Em- ployer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsist- ent with this determination. v See Laborers Local 223 (Turner Construction), 277 NLRB 99 (1985), Laborers Local 146 (Modern Acoustics), 267 NLRB 1123 (1983) Member Cracraft disagrees with the grant of the broad order herein