IBEW Local 25

National Labor Relations Board - Board Decisions

Apr 5, 1973

202 N.L.R.B. 918 (N.L.R.B. 1973)

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 25, International Brotherhood of Electrical
Workers, AFL-CIO and Comtech Telephone Con-
tractors Corporation and Communications Workers
of America, AFL-CIO, Local 1156. Case
29-CD-137
April 5, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Comtech Telephone Contractors
Corporation, herein called the Employer, alleging
that Local 25, International Brotherhood of Electri-
cal Workers, AFL-CIO, herein called Respondent,
has violated Section 8(b)(4)(D) of the Act. A hearing
was held before Hearing Officer Scott Forman on
November 22 and December 11, 1972. The Employ-
er, Respondent, and Communications Workers of
America, AFL-CIO, Local 1156, herein called CWA,
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. Thereafter, a brief was filed on behalf
of both the Employer and CWA.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE COMPANIES INVOLVED
The record discloses that the Employer, a New
York corporation with principal office and place of
business in Queens, New York, commenced opera-
tions in October 1971, and sells and services
telephone and related equipment.
The parties stipulated, and we find, that Vinyl
Masters Corporation, herein called Vinyl, in the
course and conduct of its business operations during
the past year, which are representative of its annual
operations generally, manufactured, sold, and dis-
tributed products valued in excess of $50,000 of
which products valued in excess of $50,000 were
shipped from its plants in Brooklyn and in Deer Park
in interstate commerce directly to States other than
the State in which it is located.
The parties stipulated, and we find, that Sparks
Electric Company, herein called Sparks, in the course
and conduct of its business operations, which are
representative of its annual operations generally,
during the past year purchased and caused to be
transported and delivered to its Farmingdale place of
business electrical supplies and equipment and other
goods and materials valued in excess of $50,000 of
which goods and materials valued in excess of
$50,000 were transported and delivered to its place of
business in interstate commerce directly from States
other than the State in which it is located.
The parties stipulated, and we find, that Telaction
Corporation, herein called Telaction, during the past
year, in the course and conduct of its business
operations which are representative of its annual
operations generally, sold and distributed from its
Hoboken place of business products valued in excess
of $50,000 of which products valued in excess of
$50,000 were transported from said place of business
in interstate commerce directly to States other than
the State in which it is located.
Although the operations of the Employer herein
does not alone meet our jurisdictional standards, the
combined operations of the secondary employers
involved are clearly sufficient for us to assert
jurisdiction in this proceeding. Accordingly, we find
that the Employer, Vinyl, Sparks, and Telaction are
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Re-
spondent and the CWA are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts'
In connection with the renovation of its plant,
Vinyl contracted with Sparks in March 1972 to
perform general electrical work, and with Telaction
for the installation of a paging and intercom system.
In July 1972, Telaction sent two of its employees to
the plant to install this system. Two or three days
later, Richard Deasy, foreman for Sparks, told
Vinyl's foreman, Brown, that he, Deasy, intended to
challenge the right of the Telaction employees to
perform the installation of the system because they
were not union members. After Deasy spoke to the
Telaction employees, they left the plant. Shortly
thereafter, Vinyl General Manager Charles Clementi
met with Deasy and Respondent's business delegate,
Charles Fisher. Deasy and Fisher informed Clementi
i The parties stipulated into the record in the instant case the entire NLRB No 135, for purposes of determining whether there is probable
transcript of Comtech Telephone Contractors Company, 29-CC-331, 202 cause to believe that Sec 8(b)(4)(D) has been violated
202 NLRB No. 136
e
IBEW, LOCAL 25 919
that if anyone returned to perform the installation of
the paging and intercom system, they were to obtain
a permit from Respondent before commencing work.
Clementi then informed Brown that if any men came
back to the plant to install the system, he was not to
permit them to work until they had obtained
clearance from Respondent.
Telaction, having been unable to perform the
installation of the system with its employees, subcon-
tracted the work to the Employer, whose employees
are members of CWA On or about August 10, 1972,
the Employer dispatched two employees to perform
the work in dispute. Upon their arrival at the plant,
they identified themselves as employees of the
Employer, but were told that they had to obtain
clearance from Respondent in order to do the work.
Deasy spoke with the employees, told them that they
needed a permit from Respondent, and gave them
Fisher's number to call. One of the employees
testified that he called the number and asked for
Fisher, that the person who answered did not
identify himself as Fisher but acknowledged he was
speaking to Respondent, and that he was told that he
must come over to Respondent to get the permit. The
employee next telephoned Alan Jacobs, president of
the Employer, and told Jacobs how they had been
prevented from installing the system. At Jacobs'
suggestion, the employee called Ted Watkins, admin-
istrative assistant to the vice president of District 1,
CWA, and related the morning's developments.
Watkins then contacted Respondent and spoke with
Respondent's delegate, Stafford. According to Wat-
kins, Stafford told him that the installation of the
paging and intercom system was Respondent's work
and that if the CWA insisted on doing it, he would
pull Sparks' electricians, members of Respondent, off
thejob.
On August 21, 1972, Watkins, Clarkins, Interna-
tional representative of CWA, and the two employ-
ees of the Employer returned to Vinyl's plant, and
met with Brown and Deasy. Deasy then insisted that
the employees obtain clearance from Respondent
before commencing work, but Watkins and Clarkins
refused to do so. According to Brown, Watkins, and
Clarkins, Deasy then turned to Brown and in
Watkins' presence stated that if the employees did
the installation of the paging and intercom system
without clearance from Respondent he would take
the electricians off the job. In addition, the record
discloses that shortly thereafter, Deasy told Vinyl
Vice President Clementi that if the CWA men
"resume work, he [Deasy] will be forced to take his
men out of the shop." When the men were told by
Clementi that they could not work without the
clearance, they left the plant. Shortly after the filing
of the charges in the instant case, the Employer was
permitted to return to Vinyl and complete the work
in dispute, which was accomplished without further
incident.
B. The Work in Dispute
The work in dispute involves the installation of the
intercommunication and paging system at the prem-
ises of Vinyl in Deer Park, New York. Specifically,
the work consists of a survey of the worksite, reading
of blueprints, pulling of cable through conduits and
troughs, the installation of telephones and speakers
at points throughout the plant, and the connection of
the cable to these phones and speakers, and to the
main power source. Basic tools employed in the
operation are a hammer, screwdriver, pliers, and a
staple gun.
C. Contentions of the Parties
The Employer and CWA contend that the collec-
tive-bargaining history, the Employer's assignment,
the skills necessary to perform the work, and the
economy of the Employer's operation all favor the
Employer's assignment, and that the award should
cover the Employer's employees throughout Respon-
dent's jurisdiction.
The Respondent, on the other hand, contends the
dispute has been adjusted within the meaning of
Section 10(k) of the Act inasmuch as it disclaims the
work in dispute. Alternatively, the Respondent
argues that Deasy is not an agent of Respondent, and
that Respondent should be assigned the work
because there was no contract between the Employer
and CWA at the time of the dispute, because the
contract which was reached is silent with respect to
this work, and because Respondent is experienced
with such work.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to 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, and
that there is no agreed-upon method for the
voluntary adjustment of the dispute.
With respect to Respondent's contention that
Deasy is not an agent of Respondent, the record in
the companion case, incorporated herein, fully
discloses his conduct on behalf of Respondent.
Therefore, we find, for the reasons set forth in our
Decision in that case issued today, 202 NLRB No.
135, that the conduct and statements of Deasy are
attributable to Respondent and that Respondent' is
responsible therefor. With respect to Respondent's
proffered disclaimer, we note that while Respondent,
sometime after August 29, 1972, specifically dis-
claimed the work, and, at the hearing in the instant
case, offered to disclaim all work where the Employ-
er was involved, the record in the companion case
920
i~
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discloses that members of Respondent still consider
the work in dispute within their jurisdiction. Thus,
Richard Deasy testified that he considers such work
to be Respondent ' s work and we note his status as an
agent of Respondent . The Board has long held that it
will not quash the notice of hearing if employee-
members of a union continue to claim the work
despite the union 's "official" disclaimer.2
As noted, the record discloses that Deasy made
various threats that the members of Respondent
would leave the job if CWA was permitted to
perform the work in dispute . Accordingly, we are
satisfied that there is reasonable cause to believe a
violation of Section 8 (b)(4)(D) did occur.
E. Merits of the Dispute
Section 10 (k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors
I Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified as collective-bargaining represent-
ative for a unit of the Employer's employees.
At the time Telaction subcontracted the work in
dispute to the Employer, the Employer had signed a
formal recognization agreement with CWA covering
all of its employees, but had not yet entered into a
contractual relationship. A contract was reached in
December 1972, but that agreement, in any case,
does not specifically cover the work in dispute. We
therefore find that the factors of certification and
collective-bargaining agreements are not helpful in
making our determination herein.
2. Employer and area practice
It is uncontradicted that the Employer has consist-
ently assigned the work in dispute to members of
CWA. Respondent presented evidence that it had
performed numerousjob installations throughout the
New York metropolitan area similar to the work
herein On the other hand, Alan Jacobs, president of
the Employer and a former telephone company
employee, testified that Bell Telephone Company,
employing CWA members, has performed identical
job installations to the work in dispute as a matter of
course. While the area practice therefore is not
helpful in making our determination, the Employer's
practice does favor the Employer's assignment.
3. Skill and economy of operation
It appears from the record that either craft is
capable of performing the work in dispute and each
has available to it the tools necessary to do the job.
Furthermore, it appears that the only economic
advantage to the Employer is that it does not have to
pay the Respondent's scale. As either group is as
skilled as the other, we conclude that the record does
not support the Employer's claim of skill.
Conclusions
Having considered all pertinent factors present
herein, we conclude that employees who are repre-
sented by the CWA are entitled to perform the work
in dispute. This assignment is consistent with the
Employer's preference, the assignment and the
employer practice. In making this determination, we
are awarding the work in question to employees
employed by the Employer who are represented by
the CWA, but not to that Union or its members. The
present determination is limited to the particular
controversy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Comtech Telephone Contractors
Corporation, who are currently represented by
Communications Workers of America, AFL-CIO,
Local 1156, are entitled to do the installation of the
intercommunication and paging system at the prem-
ises of Vinyl Masters Corporation in Deer Park, New
York
2. Local 25, 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 Comtech Telephone Contractors Corpora-
tion to assign the above work to its members or
employees who it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, the labor organiza-
tion listed in the preceding paragraph shall notify the
Regional Director for Region 9, in writing, whether
or not it will refrain from forcing or requiring
Comtech Telephone Contractors Corporation, by
means proscribed by Section 8(b)(4)(D) of the Act, to
assign the work in dispute to its members or
employees whom it represents rather than to employ-
ees of Comtech Telephone Contractors Company,
represented by Communications Workers of Ameri-
ca, AFL-CIO, Local 1156.
2 See, for example, Decors, Inc, 152 NLRB 278