Communications Workers of America, Local 1104

National Labor Relations Board - Board Decisions

Mar 19, 1964

146 N.L.R.B. 388 (N.L.R.B. 1964)

388 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD
and was intended only to convey the fact that the employees could
not be discriminated against bylaw because they joined the Petitioner.
We shall therefore overrule objection No. 3.1
Accordingly, as we have overruled the objections and the Petitioner
has received a majority of the valid ballots cast in the-election, we
shall certify the Petitioner as the collective-bargaining representative
of the employees in the appropriate unit.
[The Board certified United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, as the designated collective-bargain-
ing representative of the employees of the Employer in the unit,
found appropriate.]
8 See Hollywood Ceramics Company, Inc., supra.
Communications Workers of America , Local 1104 , AFL-CIO and
Frederick Bond , d/b/a Bond Electric Company , Charging
Party - and New York Telephone Company and Local 25, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, Parties
to the Dispute . Case No. 2-CD-276. March 19, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, following the'filing of charges under Section 8(b) (4)
(D) of the Act. A hearing was held before Hearing Officer Evan
J. Spelfogel on October 15, 17, and '18, 1963. All parties who ap-
peared at the hearing were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce evidence bear-
ing upon the issues . The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby affirmed.
Briefs were filed by all the parties who appeared at the hearing and
have been duly considered.'
Upon the entire record in the case, the Board a makes the follow-
ing findings :
1. The New York Telephone Company, herein referred to as Telco,
is a New York -corporation engaged in the business of providing
1 Subsequent to the hearing, Local 25, International Brotherhood of Electrical Workers,
AFL-CIO, filed a motion with the Board to incorporate an additional exhibit into the
record . All other parties, except Bond Electric Company , opposed the motion. The
motion is hereby granted . As the matter contained in this exhibit is relevant to the issues
in this proceeding and as it appears that the exhibit did not come into the possession of
,Local 25, IBEW, until after the close of the hearing , the record is hereby reopened and
the proffered exhibit incorporated into the record.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman McCulloch and
Members Leedom and Brown].
146 NLRB No. 50.
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1104 389,
local and long-distance communications and related services as part
of a nationwide telephone system. As stipulated by the parties, dur-
ing the year 1962, which period is representative of its annual opera-
tions generally, Telco derived gross revenues in excess of $1,000,000
from its business operations, of which in excess of $1,000,000 was
received for communications services between points within the State
of New York and points in other States. Frederick Bond is an in-
dividual doing business under the name of Bond Electric Company,
herein referred to as Bond, with his principal office in the city of
Glen Cove, New York. As stipulated by the parties, during the year
1962, which period is representative of his annual operations gen-
erally, Bond performed services valued in excess of $50,000 for Telco.
The parties stipulated,-and we find, that Telco and Bond are each
engaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to- assert jurisdiction herein.
2. The parties stipulated, and we find, that Communications Work-
ers of America, Local 1104, AFL-CIO, herein,referred to as CWA,
and Local 25, International Brotherhood of Electrical Workers, AFL-
CIO, herein referred to as IBEW, are labor organizations within the
meaning of the Act. -
3. The dispute :
A. Statement of facts
The dispute herein concerns a portion of the work required in con-
nection with the installation of additional telephone service -in the
Nassau County courthouse in Mineola, New York, during a major
alteration of that building. In April 1963, Telco received the order
for additional telephones and proceeded to install athem, utilizing for
that purpose its own employees who are represented by CWA. Dur-
ing the course of installation, an IBEW business representative com-
plained to Haeger, a Telco official, that that part of the work which
involved "inside wire cable and circuit installation" should have been
contracted out to an electrical contractor, by virtue of a document
known as the "Division of Work." 3
s The record is unclear as to the precise current status of this document. It was
originally a contract between Telco and Local 3, International Brotherhood of Electrical
Workers, executed perhaps as far back as 1903. It was last signed in 1917, when Local 3
had jurisdiction over Nassau County as well as the entire city of New York. It seems to
have listed various types of work frequently needed by Telco and to have reserved some
of that work for employees of Telco while obligating Telco to contract other portions of
such work to independent electrical contractors . Employees of Telco have never been
represented by the IBEW, but employees of electrical contractors used by Telco for this
purpose have, for many years, been represented by IBEW. In 1932, Local 25 was chartered
to take over the jurisdiction of Local 3 in Nassau and Suffolk Counties. In 1935, Local 3
notified Telco that it no longer considered itself bound by the agreement . The record
shows; that, despite such ^ cancellation , Telco continued to assign certain work to inde-
pendent contractors and that, in 1946, Telco promulgated a document called Division of
Work, which it provided for the guidance of its supervisors in determining whether to
use outside contractors for specified types of work. It is this latter document which was
introduced in evidence ; no copy of the original agreement was produced.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After an investigation and discussions among its officials, Telco
withdrew its own employees from the disputed work and ordered it
done by Bond. On the morning of April 29,1963, two Bond employees
reported to the Telco foreman on the jobsite. Some small amount of
work was done by the two men who, for reasons not established on the
record, were then sent home by the Telco foreman after being on the
job less than 4 hours. From April 29 to May 7, numerous discussions
were held among representatives of Telco, CWA, IBEW, and Nassau
County, but they were unsuccessful in resolving the dispute. When
Telco put its own employees to work again on May 7, county officials
canceled their order for new telephone service. No telephone work
was performed on the site until May 17, when IBEW agreed with
county officials not to picket if CWA members were assigned the work.
Telco then completed the job with its own employees.
The record shows that on or about May 1, the secretary of CWA told
Telco's division plant superintendent, that ". . . CWA considered the
work in issue their work ... that if Local 25 pulled the cable, the
CWA would refuse to connect telephone service and would refuse to
service the job, altogether."
B. Contentions of the parties
The IBEW and Bond take the position that the disputed work
should be contracted out by Telco to an independent electrical con-
tractor employing members of IBEW. They rely on the "Division of
Work" document, on Telco's alleged practice over the years of using
contractors for such work, and on the need for electricians' skills in
order to perform the work.
Telco and CWA contend that the work should be performed by
Telco's employees who are represented by CWA. They allege that
Telco has always used its own employees to perform such work on
county-owned buildings, such as the one in dispute here, and deny that
the practice of using contractors on privately owned buildings is rele-
vant to the determination herein. They further urge that the work in
dispute does not require the skills of a journeyman electrician, or the
expenditure of the much higher rates of pay received by electricians.
They also point out that Telco's assignment of the work to its own em=
ployees is consistent with the Board certification of CWA and with
Telco's collective-bargaining agreement with CWA.
C. Applicability of the statute
The Board must be satisfied that there is reasonable cause to believe
that Section 8 (b) (4) (D) of the Act was violated before it may proceed
with a determination of dispute pursuant to Section 10 (k) of the Act.
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1104 391
The CWA attorney admitted at the hearing that it had made threats
to Telco that if IBEW employees installed the cable and wires, mem-
bers of CWA would refuse to connect the telephones. We find; upon
the basis of the foregoing, that there is reasonable cause to believe that
Section 8(B) (4) (D) has been violated, and that the dispute is prop-
erly before the Board for determination under Section 10(k) of the
Act.
D. Merits of the dispute
Much of the hearing in this matter was devoted to the effect which
should be given to the "Division of Work " document. In situations
in which a new building is being erected or structural changes are be-
ing made on an existing building , and the rest of the project is union-
ized, this document specifies whether particular work is to be done by
Telco 's own employees or by an independent contractor . IBEW con-
tends that it is entitled to the disputed work because the instant job
is both a structural change and entirely unionized , and also because
the terms of the "Division of Work" document assign work such as is
involved here to independent contractors . On the record before us,
however, and in view of the fact that the document is currently being
used only as a guide to Telco supervisors , we cannot give it the status
of an agreement which is binding on the parties, as IBEW would
have us do. Rather , we look upon it as evidence of a practice on the
part of Telco to contract certain work to independent contractors. In
this connection , it is significant that on certain occasions in the past the
document was actually followed by Telco in letting out contracts.
With respect to Telco 's actual practice , all the instances recounted in
the record when Telco contracted out work involved either privately
owned buildings or original construction of county-owned buildings.
However, all the instances recounted in the record of structural
changes on county-owned buildings, such as is in dispute here, involved
assignment of the work to Telco employees . Under these circum-
stances, we find that the only relevant Telco practice is to assign such
work to its own employees and that this factor favors the contentions
of CWA and Telco.
The work in dispute consists of drawing telephone wires through
indoor conduits or ducts , fastening such wire to walls by means of
staples or clamps, and attaching backboards to walls by means of
screws. The record shows that this work involves use of the simplest
hand tools, that a moderately intelligent man can be trained in as
little as 1 day to perform the work, and that occasionally untrained
individuals may be put to work at this task . We therefore find that
the high skills of a journeyman electrician are not necessary for the
competent performance of the work herein. We note , moreover, that
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the current wage rate of a journeyman electrician under the IBEW
contract is $5.10 per hour, while the current wage .rate of an installer
under the CWA contract is approximately $3.51 per hour.
The Board, in 1961, certified CWA as collective-bargaining repre-
sentative of all Telco's plant department employees. The current
collective-bargaining agreement between these parties covers all.such
employees, including installers who have been assigned the disputed
work by Telco 4 IBEW has no agreement with Telco, but Bond is
a signatory to the agreement between IBEW and the Nassau and
Suffolk Chapter of the National Electrical Contractors Association,
which is silent concerning the type of work in dispute herein. We
find, therefore, that Telco's assignment of the work is consistent with
the Board certification of CWA as representative of Telco's employ-
ees and with Telco's collective-bargaining agreement with 'CWA. We
further find that such assignment'is not' inconsistent with the Bond-
IBEW contract.
Weighing the factors relied upon by Telco and CWA on the one
hand, against those cited by Bond and IBEW on the other, we con-
clude that the former outweigh the latter. As Telco has used its own
employees for similar work on county-owned projects in'the,past,
as Telco has assigned the disputed work to them, as they are suffi-
ciently skilled to perform it, as the assignment is consistent with the
Board certification and with the terms of the collective-bargaining
agreement between Telco and CWA, and as performance of such work
by Telco employees is more economical than utilization of electricians,
we shall determine the dispute in favor of the Telco employees who
performed the work. Our present determination is limited to the
particular controversy which gave rise to this proceeding.! In mak-
ing this determination, we are assigning the controverted work to
Telco employees represented by CWA, and not to CWA or its
members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing and the entire record in the case,
the Board makes the following Determination of Dispute pursuant
to Section 10 (k) of the Act :
4IBEW contends that Telco's order to Bond to perform the work constituted an assign-
ment of the work to IBEW members. The record shows, however , that Telco originally
assigned the work to its own employees , contracted with Bond only after IBEW pro-
tested such assignment , and has consistently taken the position throughout these pro-
ceedings that its own employees should be awarded the work. We find , therefore, that
Telco has assigned the disputed work to its own employees represented by CWA, rather
than to Bond's employees represented by IBEW.
5 The courthouse project where this dispute arose has been completed. Our determina-
tion herein covers assignment of the work in issue in any area served by Telco, where the
geographical jurisdiction of Communications Workers of America, Local 1104 , AFL-CIO,
and; 'Local), 25,4 'International fBrotherhood • of, Electrical worke4s,4 .AFL-CIO,', coincide:
Local Union No. 8, IBEW, AFL-CIO ( Western Electric Company, Incorporated), 141
NLRB 888, footnote 12.
BARBERTON PLASTICS PRODUCTS, INC. 393
Employees of the New York Telephone Company, currently repre-
sented by Communication Workers of America, Local 1104, AFT,
,CIO, are entitled to perform the following work : Inside wire cable
.and circuit installation work required for the installation of tele-
phone and other communications equipment in major alterations of
-county-owned buildings.
Barberton Plastics Products , Inc. and International Chemical
Workers, AFL-CIO. Case No. 8-CA-2854. March 19, 196.E
SUPPLEMENTAL DECISION AND ORDER
On March 7, 1963, the Board issued a Decision and Order in the
above-entitled proceeding' finding, inter alia, that the Respondent had
discriminated against employee Detrick in violation of Section 8(a)
(3) and (1) of the Act, and directing that the Respondent offer said
employee immediate and full reinstatement to his former or substan-
tially equivalent position and makehim whole for any loss of pay suf-
fered by reason of the Respondent's discrimination against him.
On July 1, 1963, the Board's Acting Regional Director for the
Eighth Region issued and served on the parties a backpay specification
and notice of hearing, alleging that the Respondent's obligation to
make whole employee Hetrick would be discharged by payment of
certain liquidated amounts due him in the period between the unlaw-
ful discrimination against him and June 30, 1963, and additional un-
determined amounts accumulating from July 1, 1963, to the date of
an offer of reinstatement. On July 10, the Respondent filed an answer
thereto. Pursuant to notice, a hearing was held before Trial Ex-
aminer John F. Funke for the purpose of determining the amount of
backpay due the aforesaid employee in the period from the date of
the discrimination against him to June 30, 1963. On December 2,
1963, the Trial Examiner issued his Supplemental Decision, attached
hereto, in which he found that Hetrick was entitled to payment of
$2,844.96. Thereafter, the General Counsel and the Respondent filed
exceptions to the Trial Examiner's Supplemental Decision and briefs
in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
i 141 NLRB 174. The Trial Examiner 's Supplemental Decision inadvertently cites this
case as 141 NLRB 458.
146 NLRB No. 54.