Int'l Alliance of Theatrical, Etc. Local No. 862

National Labor Relations Board - Board Decisions

Jun 21, 1962

137 N.L.R.B. 738 (N.L.R.B. 1962)

'738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the said Regional Director proceed in accordance with Section
102.69 of National Labor Relations Board Rules and Regulations, as
amended.]
MEI1BER FANNING took no part in the consideration of the above
Decision on Review and Order.
International Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators of the United States and
Canada, Treasurers and Ticket Sellers Local No. 862, AFL-
CIO and Building Service Employees International Union,
Public Events Employees Union , Local 188, AFL-CIO and
Allied Maintenance Company of Pennsylvania, Inc. Case No.
6-CD-128. June 11, 1961
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Allied Maintenance Company of Pennsylvania, Inc.,
herein called Allied or the Employer, against International Alliance
of Theatrical Stage Employees and Moving Picture Machine Oper-
ators of the United States and Canada, Treasurers and Ticket Sellers
Local No. 862, AFL-CIO, herein called Local 862 or the Respondent,
alleging that Local 862 illegally coerced the Employer to change work
assignments from one class of employees to another. A duly sched-
uled hearing was held before George F. Mclnerny, hearing officer, on
October 10, 1961. The Employer, Local 862, and Building Service
Employees International Union, Public Events Employees Union,
Local 188, AFL-CIO, herein called Local 188, appeared at the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing upon the issues.
The rulings of the hearing officer made at the hearing are free from
prejudicial, error and are hereby affirmed.
Upon the entire record, the Board makes the following findings:
1. The Employer
Allied Maintenance Company of Pennsylvania, Inc., is engaged in
the business of operating and maintaining auditoriums and other build-
ings used for public events performances. The parties stipulated that
in carrying on this business, Allied has performed services in excess
of $50,000 for companies which annually ship products in excess of
$50,000 outside the State of Pennsylvania. We find that the Employer
is engaged in commerce within the meaning of the Act.
137 NLRB No. 79.
INT'L ALLIANCE OF THEATRICAL , ETC., LOCAL NO. 862 739
2. The labor organization
We find that Locals 862 and 188 are labor organizations within the
meaning of the Act.
3. The dispute
a. The work in dispute
The Pittsburgh auditorium is a public arena designed and built to
house public presentations of all varieties, such as sporting events,
conventions, exhibitions, theatrical performances, etc. It is operated
by the Public Auditorium Authority of Pittsburgh and Allegheny
County, herein called the Authority. Allied, the Employer involved,
contracted with the Authority to take over the management and house-
'keeping. functions necessary to the operation of the arena. Included
in the work which its employees are to do is ticket selling for the pub-
lic events, and it is this limited part of the duties of Allied's employ-
ees which is in dispute here. While selling tickets, the ticket sellers
are required to answer queries regarding seating arrangements, hours
and schedules of performance, and the price of tickets.
During May and June 1961, before any ticket-selling activities were
scheduled, Respondent Local 862 advised officials of the Authority
that it represented ticket-selling employees, that it had "jurisdiction"
•over any. such work that might be performed at the arena, that "we
were qualified people and wanted to be hired," and that it, Local 862,
wished to be recognized as bargaining agent for such employees.
Local 862 made essentially the same representations directly to Allied
•on several occasions before June 20.
The first show (Ice Capades) was scheduled to take place on Sep-
tember 16. . During August the Company advertised for and received
many hundreds of employment applications. No members of Local
862 applied for jobs as ticket sellers. The Company hired five or six
persons whom it designated ticket sellers before September 16, and
at least one was already at work by August 31.
On or about ' September 12, 1961, approximately 1 week before the
opening, Local 862 picketed the Arena for 21/2 days;. its pickets carried
..signs bearing the legend:. "Allied Maintenance Company of Penn-
sylvaniaa+,does not employ,ticket sellers who are members of Local 862,
AFL-CIO, I.A.T.S.E., at the new public auditorium."
b. Contentions of the parties
In its charge, the Company alleged that Local .862's purpose, when
it picketed and induced employees to refrain from working, was to
force the Company to assign ticket-selling work to members of that
Union instead of to the Company's own employees. At the hearing, it
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contended only that its employees were not members of Local 862 and
it therefore was not obligated to recognize Local 862 as bargaining
agent. Its witness also asserted that the skills exercised by ticket
sellers do not require that they be members of Local 862, and that it
therefore had a right to continue the assignment to the ticket sellers
it was then and is still now using.
Local 188 of the Building Service Employees International Union
intervened at the hearing and contended that it represented a majority
of all of Allied's employees, including ticket sellers. It also moved
that the notice of hearing be quashed on the ground that the facts do,
not establish a jurisdictional dispute cognizable under Section 10(k)
of the Act. More precisely it argued that because one of the two con-
tending groups of employees- the ticket sellers represented by Local
862-are not in fact employees of the Company, there do not exist
"two or more employee groups claiming the right to perform certain
work tasks," a phrase appearing in the Supreme Court decision in the
CBS case.' At bottom this position rests on the assertion that per-
sons not in fact employed by the company involved in a Section 10(k)
proceeding are not to be deemed employees in the appraisal of disputes
under that section of the statute.
Local 862, the Respondent, insists that the question here is a juris-
dictional dispute within the intendment of the statute, and rests its
claim for the work upon the asserted requisite skills, and industry
practice.
c. The applicability of the statute
On consideration of the record in its entirety, we are satisfied that
the essential elements of a jurisdictional dispute are revealed and that
the issue is properly before the Board for determination. It is clear,
and no contrary contention is advanced, that the purpose of the picket-
ing was to bring about a work stoppage by employees at the arena
and thereby to force Allied to comply with Local 862's demands. It
also seems quite manifest, in view of the unequivocal language appear-
ing on the picket signs, that Local 862 was seeking removal from their
jobs of those persons then working as ticket sellers and placement in
their positions of members of Local 862. The signs publicized the
dispute as Allied's failure to "employ ticket sellers who are members
of Local 862."
In its early communications with the Authority and with Allied,
Local 862 said, among other things, that it desired representation
status as bargaining agent for any ticket sellers who might be em-
ployed. At the hearing its agent also complained of not having been
afforded an opportunity to act as the bargaining representative. How-
1 N.L R B. v. Radio & Television Broadcast Engineers Union Local 1212 International
Brotherhood of Electrical Workers, AFL-CIO (Columbia B,oadcasting System), 364
U.S. 573.
INT'L ALLIANCE OF THEATRICAL, ETC., LOCAL NO. 862 741
ever, in its written demands, Local 862 also claimed "jurisdiction"
over ticket-selling work, it did not send any of its members to apply
for the jobs when they were filled, and there is no evidence or claim
that Local 862 either before or at the time of the hearing was attempt-
ing to solicit the ticket sellers on the job to join that Union or to
authorize it to act as their collective-bargaining agent. Moreover,
that Union's business agent said at the hearing that his dispute with
Allied was "over employing members of IATSE," and his expressed
contention was that the dispute is a pure jurisdictional quarrel within
the meaning of the statute.
As to the motion to quash the notice of hearing, made by Local 188,
the Board has long held that Sections 8(b) (4) (D) and 10(k) are not
limited in their application to work disputes between two groups of
employees both currently working for the same Employer? Indeed,
in the recent Badolato case, a comparable situation was presented and
viewed as a jurisdictional dispute within the meaning of those sec-
tions.' And while Local 188 requests that the members of Local 862,
on whose behalf the Respondent claims the disputed work, not be
deemed employees for purposes of this proceeding, it did not disavow
any claim on behalf of the employees at work whom it claimed to
represent; indeed, a necessary implication of its total position is that
they are entitled to continue in their present work assignment.
Accordingly, on the basis of the entire record, we find that there is
reasonable cause to believe that a violation of Section 8 (b) (4) (D) has
occurred and that the dispute is properly before the Board for de-
termination under Section 10 (k) of the Act.
3. Merits of the dispute
The work claim for Local 862's ticket-seller members rests princi-
pally upon the assertion that such work requires skills possessed to a
sufficient degree only by them. The evidence supporting this broad
assertion consists of the conclusionary statement of Local 862's wit-
nesses and the statement by its business agent that the ticket-selling
trade requires completion of a 3-year apprenticeship program main-
tained by that union. The witness did not elaborate on the type of
training or instruction involved, the work schedules provided, or the
"journeymen" assistance performed by such an apprentice. He said
only that the program was carried out under guidance of "an experi-
enced man." Against the foregoing evidence, witnesses for the Com-
2 See International Longshoremen's and Warehousemen 's Union, Local No. 16, CIO.
(Juneau Spruce Corporation ), 82 NLRB 650, 653; International Longshoremen's and
Warehousemen's Union, at at v Juneau Spruce Corporation, 342 U S 237, 244-245
(1952 ) ; and Un ited Mine Workers of America, District 50 (Turman Construction Com-
pany ), 136 NLRB 1068.
3lnternational Union of Operating Engineers , Local 66, AFL-CIO (Frank P Badolato c6
Son), 135 NLRB 1392.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany and for Local 188 testified that the only requisites for competent
ticket-selling work are average intelligence, manual dexterity, and,
above all, honesty. They expressed the opinion that a week's experi-
ence suffices to train a full-time ticket seller. We do not doubt that
the disputed work at times, particularly during rush hours when large
amounts of money must be controlled, requires considerable mental
concentration and manual dexterity; however, ordinary experience
and commonsense point strongly to a measure of exaggeration by the
Respondent's witnesses in this instance.
Both Unions contend that custom and practice in this area and in
the public entertainment industry generally support their respective
work claims. On this subject, always a factor relevant to a work
award in these proceedings, the evidence is factual and uncontradicted.
However, in its totality, it is inconclusive and lends only partial sup-
port to each of the conflicting claims. Thus, the record shows that
Allied or its parent organization elsewhere has had, and has, collective-
bargaining agreements with both of the two contending unions for
ticket sellers, albeit through different constituent locals. At Yankee
Stadium in New York Local F72 of IATSE represents the ticket sell-
ers; at Wrigley Field, Los Angeles, Local 399 of the Building Service
Employees represents the ticket sellers; at the Los Angeles Memorial
Coliseum the same Local 399 also represents ticket sellers. The busi-
ness agent of Local 862 testified without contradiction that his local
represents ticket sellers at various Pittsburgh public events facilities,
including the Nixon Theater, the Warner Theater, the Pittsburgh
Symphony, and the Shrine Temple. It appears, however, that the
Building Service Employees Union, again on the uncontradicted tes-
timony of the president of Local 188, represents ticket sellers at the
Pittsburgh University Stadium, the Heidelburg Raceway, South Park
Speedway, the Pittsburgh baseball park, and the Wheeling, West
Virginia, racetrack.
We find this checkered pattern of union representation of ticket
sellers by both claiming unions of little help in resolving the dispute
presented. It indicates rather that there has been no traditional aline-
ment of ticket sellers in this field within the limited membership of
either union.
A further argument advanced by Local 862 is that because its mem-
bers sold tickets for certain public performances-such as the Pitts-
burgh Civic Opera Company-when those presentations were given in
other locations in Pittsburgh, they are now entitled to work at the
arena when those performances will take place in the new location.
This argument, too, is equally applicable to the work claim of Local
188 or any of its members who also at times were employed selling
tickets for performing companies which moved their location into the
new arena.
HARRY TANCREDI 743
The foregoing is the sum total of the evidence received in this pro-
ceeding which has a bearing upon the merits of the dispute, or the
question of an affirmative assignment by this Board. As the skills
required to perform the disputed work were not affirmatively shown to-
be such as to fall exclusively within the jurisdictional claims of the
Respondent Local 862, as the evidence relating to custom and practice
locally or industrywide points with equal persuasion to a work as-
signment in favor of either of the competing groups, and upon con-
sideration of the record as a whole, we shall resolve the work dispute
by assigning the work to the ticket sellers presently employed by the
Company. We also find, therefore, that Local 862 was not and is not
entitled to coerce Allied or to picket the Pittsburgh arena for the pur-
pose of compelling the Company to change work assignments in favor-
of members of Local 862.
DETERMINATION OF DISPUTE
On the basis of the foregoing, and upon the entire record in the
case, the Board makes the following Determination of Dispute pur-
suant to Section 10 (k) of the Act :
Employees engaged as ticket sellers presently employed by the Em-
ployer are entitled to the assignment of selling tickets at the Pitts-
burgh arena. Accordingly, Local 862, I.A.T.S.E., is not and has not
been lawfully entitled to force and require Allied to assign such work
to its members.
Within 10 days of the date of this Decision and Determination of-
Dispute, International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and Canada,
Treasurers and Ticket Sellers Local No. 862, AFL-CIO, shall notify
the Regional Director for the Sixth Region, in writing, whether or not
it will refrain from forcing or requiring Allied Maintenance Company
of Pennsylvania, Inc., by means proscribed by Section 8 (b) (4) (D),
to assign the work in dispute to its members rather than to employees
presently engaged as ticket sellers.
MEMBER RODGERS, concurring :
I concur in the result.
Harry Tancredi and Lionel Richman . Case No. 21-CA-4484..
June 22, 1962
DECISION AND ORDER REMANDING THE CASE
TO THE TRIAL EXAMINER
On April 30, 1962, Trial Examiner Herman Marx issued his Inter--
mediate Report in the above-entitled proceeding , recommending that.
137 NLRB No. 92.