Local 134, Electrical Workers

National Labor Relations Board - Board Decisions

Jun 30, 1971

191 N.L.R.B. 828 (N.L.R.B. 1971)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 134, International Brotherhood of
Electrical Workers, AFL-CIO and International
Telephone & Telegraph Corporation , Communica-
tions Equipment and Systems Division and Com-
munications Workers of America , AFL-CIO. Case
13-CD-209
June 30, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following the
filing of a charge by International Telephone & Tele-
graph Corporation, Communications Equipment and
Systems Division, herein called the Employer, alleging
that Local Union No. 134, International Brotherhood
of Electrical Workers, AFL-CIO, herein called Local
134, had violated Section 8(b)(4)(i) and (ii)(D) of the
Act by engaging in certain proscribed activity with an
object of forcing or requiring the Employer to assign
the work in dispute to members of Local 134 rather
than to employees of the Employer represented by
Communications Workers of America, AFL-CIO,
herein referred to as CWA.
Pursuant to notice, a hearing was held in Chicago,
Illinois, before Hearing Officer Stephen S. Schulson on
March 12, 15, and 17, 1971. All parties appeared at the
hearing and were given full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, briefs were
filed by the Employer, Local 134, and CWA in support
of their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds them free from
prejudicial error. They are hereby affirmed.' The Board
' We agree with the Hearing Officer's rulings that it was untimely for
Local 134 to attack the validity of the collective-bargaining agreement
between the Employer and CWA for 8(a)(2) purposes, and that material
subpenaed by Local 134 was therefore not relevant Section 10(b) would bar
the issuance of a complaint attacking CWA's representative status as of the
time the present contract was executed. Local Lodge No. 1424, Interna-
tional Association of Machinists v. N.L.R.B. (Bryan Manufacturing Com-
pany), 362 U.S 411. Accordingly, as CWA's representative status could not
be litigated under these circumstances, we agree that such evidence could
not be adduced in an 8(b)(4)(D) proceeding for the purpose of collaterally
attacking CWA's status as statutory bargaining representative.
Local 134 alleges that it was denied substantive due process by what it
considers inadequate notice as to the scope of the hearing, claiming that the
Employer and CWA introduced evidence of events occurring beyond the
jurisdiction of Local 134 and beyond its knowledge, therby "tainting" the
record We disagree The Board has consistently looked to the custom and
practice of the industry, employer practice, and contract coverage as factors
has considered the entire record in this case, including
the briefs, and hereby makes the following findings:
I THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that Interna-
tional Telephone & Telegraph Corporation, Communi-
cations Equipment and Systems Division, is engaged in
the distribution and installation of electronic telephone
equipment and related products with facilities in the
States of Connecticut, Illinois, Tennessee, New York,
New Jersey, California, Florida, and other States. Dur-
ing the past calendar year, International Telephone &
Telegraph Corporation, Communications Equipment
and Systems Division, in the normal course and con-
duct of its operations, has received goods and materials
valued in excess of $100,000 which were shipped to its
facilities directly from across state lines. Accordingly,
we find that International Telephone & Telegraph Cor-
poration, Communications Equipment and Systems
Division, is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local Union
No. 134, International Brotherhood of Electrical
Workers, AFL-CIO, and Communications Workers of
America, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background Facts
In 1969 , the Federal Communications Commission
issued the Carterfone decision2 which allowed private
individuals or firms to purchase their own telephone
equipment and have it "interconnected" with an oper-
ating telephone company system . Prior to this, operat-
ing telephone companies had refused to permit private
telephone systems to be connected to the operating
company 's trucklines . The Communications Equip-
ment and Systems Division of International Telephone
& Telegraph Corporation was established shortly after
the FCC decision , in April 1969. The Employer is en-
gaged in the sale, installation, testing, and maintenance
relevant to its consideration of the merits of the dispute. International
Association ofMachinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construc-
tion Co.), 135 NLRB 1402. Local 134 therefore had sufficient notice of the
scope of the hearing on these matters. Further, the record, in our view, is
of sufficient clarity to support a determination of dispute and an award
confined to the area served by Local 134.
Accordingly, we find no merit in Local 134's requests to reopen the
hearing.
' 13 FCC 2d 420.
191 NLRB No. 122
LOCAL 134, ELECTRICAL WORKERS 829
of private telephone systems. The equipment sold by
the Employer is manufactured by various divisions of
International Telephone & Telegraph Corporation and
is typically connected to the trunklines of the local
operating telephone company.
The Employer entered into a contract with the Vil-
lage of Elk Grove, Illinois, on August 27, 1970,3 for the
sale, installation , testing, and maintenance for 1 year of
an EPABX° Model No . TE400 switching system and
related telephone and circuitry work . The installation
of this equipment involved the processes known as
"pulling cable" and "terminating the cable;" the latter
included installation of telephone instruments. The
Employer subcontracted the work of "pulling cable"
from the telephone room' to locations throughout the
building to the C. A. Riley Electric Construction Co.,
a contractor whose employees are represented by Local
134. This work involved the pulling of 52 different
cables and identification of each cable by physically
tagging them so that it could readily be determined to
which telephone sets they were to be connected. The
Employer reserved the work of "terminating the cable"
and the installation of the telephone instruments for its
own employees , represented by CWA. C. A. Riley em-
ployees engaged in cable -pulling work from mid-
November to mid-December . Employees of the Em-
ployer reported to the jobsite on December 3 and began
installation of the EPABX equipment . At the request
of village officials , made late in the day of December 3,
the Employer did not return to the jobsite until Decem-
ber 21. The Employer thereafter completed the installa-
tion work on December 23.
B. Work in Dispute
The work in dispute herein is the installation, testing,
and maintenance of the PBX telephone switchboard
and the installation of telephones, excepting telephones
servicing the police and fire departments, at various
locations of the Elk Grove village administration build-
ing, Elk Grove, Illinois. The work in dispute is limited
to that phase of the installation concerning termination
of the cable and installation of the telephone instru-
ments.'
Unless otherwise noted, all events transpired in 1970.
° There is undisputed testimony in the record that the terms PBX, PABX,
and EPABX are used interchangebly. The terms PABX and EPABX refer
to refinements of the basic PBX system
5 Trunklines from the local operating telephone system were earlier in-
stalled by members of Local 134 employed by the Illinois Bell Telephone
Company.
° The Employer and CWA also argue the work of "cable pulling" should
be assigned to employees represented by CWA. That work is not in dispute
in this proceeding and, accordingly, we find it unnecessary to pass upon the
merits of CWA's claim to that work.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that Local 134 has violated Section
8(b)(4)(D) of the Act, and that the record supports its
assignment of the work in dispute to its employees
represented by CWA. The Employer cites considera-
tions of skill, industry and company practice, efficiency
and economy of operations, and its collective-bargain-
ing agreement with CWA in support of its assignment.
Additionally, the Employer urges that the Board's
award in this proceeding be nationwide in scope. CWA
has taken a position basically consistent with that
urged by the Employer regarding the work in dispute
and the scope of the award.
Local 134 argues that the record is insufficient to
support a finding that it engaged in any conduct that
would amount to an unfair labor practice within the
meaning of Section 8(b)(4)(D). It also contends that the
work in dispute is within the jurisdiction of Local 134
and should be assigned to individuals represented by it.
Local 134 offers considerations of area practice, license
requirements, economy, the alleged recognition of its
jurisdiction by the Employer, the contract between the
Employer and CWA, and the loss of job opportunities
by members of Local 134, in support of its claim for the
work in dispute.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated. The
record indicates that on November 11, Local 134 Busi-
ness Agent Van Wetering told a representative of the
Employer that CWA does not install telephones in
Cook County.' Later, on November 30, prior to the
time employees of the Employer represented by CWA
appeared at the jobsite, Van Wetering met with the
Employer's director for labor relations, Foster, and
stated that Local 134 did the installation and mainte-
nance of telephone equipment in Cook County. Van
Wetering also told Foster on that occasion that Local
134 better do the work or there would be "trouble."
On December 3, when the Employer began installa-
tion of the EPABX equipment with CWA-represented
employees, there were Local 134 members employed by
Johnson Electric Company, Illinois Bell Telephone
Company, and C. A. Riley working at the jobsite. After
a Local 134 steward ascertained that the Employer's
employees were represented by CWA, he said, "We
can't work here." Another Local 134 steward told
other Local 134-represented employees that "if they
' Elk Grove, Illinois, is located within Cook County, Illinois.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[CWA] are working here we are leaving." Employees
of all three contractors thereafter left the building site
taking their tools with them.
Local 134 suggests that this testimonial evidence is
incredible. In a jurisdictional dispute context, the
Board is not charged with finding that a violation did
in fact occur, but only that there is reasonable cause to
believe that there has been a violation! On this tes-
timony, and without ruling on the credibility of the
testimony in issue,' we are satisfied that there is reason-
able cause to believe that a violation of Section
8(b)(4)(D) has occurred.
The parties have not submitted satisfactory evidence
that they have adjusted or agreed upon methods for the
voluntary adjustment of this dispute. Under these cir-
cumstances, we find that it will effectuate the policies
underlying Sections 10(k) and 8(b)(4)(D) of the Act for
us to determine the merits of the dispute. Accordingly,
we find that this dispute is appropriate for resolution
under Section 10(k) of the Act.
On the basis of the entire record in this case, 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 determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to various relevant factors.10 The
Board has held that its determination of a jurisdictional
dispute is an act of judgment based upon common sense
and experience reached by balancing those factors in-
volved in a particular case."
The following factors are relevant in making a deter-
mination of the dispute before us:
1. Certification and collective-
bargaining agreements
Neither labor organization involved herein has been
certified by the Board nor is there evidence indicating
that a Board certification covers the disputed work.
The Employer is party to a current, nationwide col-
lective-bargaining agreement with CWA. That agree-
ment applies to "installation, replacement, and mainte-
nance operations [of the Employer] in the United States
8 Locals 138, 138A, 138B, 138C, and 138D, International Union ofOper-
ating Engineers, AFL-CIO (Cafasso Lathing & Plastering, Inc.), 149 NLRB
156, 158-159.
' See Local Union No. 3, International Brotherhood of Electrical Work-
ers, AFL-CIO (Western Electric Company, Incorporated), 141 NLRB 888,
893.
1° N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO (Co-
lumbia Broadcasting System), 364 U.S. 573, 586.
" International Association of Machinists, Lodge No 1743, supra
or its possessions." Pursuant to this agreement, the
Employer has assigned its employees represented by
CWA to perform the work in dispute. The Employer
is not, and never has been party to any collective-bar-
gaining agreement with Local 134. We conclude, there-
fore, that considerations of collective-bargaining his-
tory and agreements favor assignment of the work to
employees represented by CWA.
2. Area, employer, and industry practice
Local 134 contends that only individuals represented
by it have performed PBX installation work in Cook
County, except for the- instant dispute. In support of
this contention, Local 134 relies primarily on the fact
that Illinois Bell uses it own employees represented by
Local 134 to install PBX equipment in Cook County.
There is, however, uncontradicted testimony indicating
that employees of Western Electric represented by
CWA install and test central office equipment in Cook
County for the operating telephone company, Illinois
Bell. There is substantial evidence in the record before
us to indicate that the work of installing and testing
central office switching equipment and the work of
installing and testing a PBX system are to' a large de-
gree quite similar in nature. Both are intended to
"switch" telephone messages, albeit central office
equipment is often constructed on a larger scale than
is the ordinary PBX system. We note, in this regard,
the uncontradicted testimony of the Employer's wit-
ness, Fulton, to the effect that a central office equip-
ment man for an operating telephone company would
be ideally qualified, by virtue of training and experi-
ence, to be a communications technician, the title the
Employer gives to its employees performing the work
in dispute.
In further support of its claim that its members are
entitled to perform the work in dispute on the basis, in
part, of established area practice, Local 134 points to
a franchise agreement between International Tele-
phone & Telegraph and Midco, Inc., for the installation
of interoffice communications equipment (PAX) manu-
factured by a division of IT & T in the years 1960
through 1968. Local 134 argues that the Employer
thereby recognized its claim to work in dispute. Midco
utilized employees represented by Local 134 when in-
stalling PAX equipment within the jurisdiction of Lo-
cal 134. Midco installed only one PBX system, in 1970.
We conclude from the foregoing that considerations
of area practice favor neither labor organization in
making an award of the work in dispute; while Local
134 has performed all PBX work in the area, CWA-
represented employees have performed highly similar
work within Cook County. -Moreover, area practice
alone would not play a controlling role in our decision
herein.
LOCAL 134, ELECTRICAL WORKERS 831
The nationwide industry practice is to assign the
disputed work to individuals represented .by CWA: In.,
this regard, the record shows that it is the Employer's:
practice , on a nationwide basis, to assign this work to
employees represented by CWA. The record also dis-
closes that all installation of PBX equipment manufac-
tured by Western Electric , a competitor of the Em-
ployer, is installed by employees of Western Electric or
operating telephone companies represented by CWA,
with the exception of work performed in Cook County
and the State of New Jersey . Employees represented by
Local 134 and International Brotherhood of Electrical
Workers install Western Electric's PBX equipment in
those areas , respectively . We find that Employer and
industry practice favor assignment of the work in dis-
pute to employees represented by CWA.
3. Skills and training of employees
In support of its assignment to employees repre-
sented by CWA, the Employer argues that the work of
electricians and the work of telephone men is com-
pletely dissimilar. Fulton testified that an electrician is
neither trained in nor works with electronics or solid
state circuitry, while electronics training is the basis for
the work of a communications technician. Fulton es-
timated that it requires 6 years of training for one of its
communications technicians to become "fully qua-
lified" to install PBX systems. The Employer also con-
ducts special training classes for particular items of its
equipment, including a 4-week training program for
the type of PBX installed in the instant dispute.
Local 134 has not alleged that its members have had
any experience with the particular type of equipment
installed in the Elk Grove Village project, although
there are some 40 electricians' registered with Local
134's hiring hall who are one-time Bell systems em-
ployees, and at least some of these 40 have had experi-
ence with PBX equipment while with Bell. Local 134
maintains no separate listing of its PBX, qualified mem-
bers.
The record establishes to our satisfaction that the
work of a communications technician, as employed by
the Employer, and an electrician, as represented by
Local 134, is significantly different and requires dis-
similar training and techniques. Indeed, Local 134 de-
scribed itself in its brief as "a union whose members
traditionally perform electrical work on new construc-
tion work in conjunction with other building trades
unions." In our view, the work in dispute is not prop-
erly described as "electrical work on new construction
work" but rather'the installation of an item of highly
sophisticated communications equipment. Accord-
ingly, we find that consideration of the factors of skill
and special training favor assignment of the disputed
work to employees of the Employer represented by
CWA.
4. Efficiency and economy of operations
The record indicates that communications techni-
cians employed by the Employer and represented by
CWA are paid at a substantially lower hourly rate than
are journeymen electricians represented by Local 134.
Communications technicians have a maximum hourly
wage of $3.27 while a journeyman electrician is rated
at almost $8 per hour. A journeyman employee of a
sound contractor, also represented by Local 134, re-
ceives $5.48 on an hourly basis.
C. A. Riley Company made a bid of $2,600 for the
work of terminating the cable. The Employer's witness
testified that this bid was about $1,000 too high. Riley's
bid for the termination work was based upon an ap-
proximate 200 hours of work, later reduced to an es-
timated 180 hours. The record indicates that employees
of the Employer performed this same work in no more
than 96 hours.
The sales agreement between the Employer and Elk
Grove Village includes a provision that the Employer
will perform necessary maintenance work for a period
of 1 year. We have found that maintenance require-
ments often militate in favor of an employer's assign-
ment, expecially when factors of training in installation
and service of an employer's specific equipment are
present.12 Such factors are present in the instant dis-
pute. We find that factors of both economy and effi-
ciency support an award of the work in dispute to
employees represented by CWA.
5. Other factors
Local 134 has raised a number of other issues that,
it alleges, supports its claim to the work in dispute. It
argues that the Employer failed to comply with certain
general licensing requirements for electrical work, and
that such requirements extend to the installation of
telephone communications equipment." It is undis-
puted that the Employer was not issued a license for the
performance of the work in dispute. The question of
licensing, in these circumstances, is irrelevant. Local
134's witness, a supervisor of electrical inspection for
Chicago, testified on cross-examination that whether or
12 See e.g., Radio-Television-Sound Technicians Local Union 1139, Inter-
national Brotherhood of Electrical Workers, APL-CIO (Motorola Com-
munications and Electronics, Inc.), 180 NLRB No. 154.
13 The Employer argues in its brief that the general licensing require-
ments for electrical work do not apply to the installation of telephone
communications equipment and notes that Local 134's assertion is predi-
cated exclusively upon an interpretation of an allegedly relevant ordinance
by a supervisor of electrical inspection for Chicago. Respondent has offered
no citation to a court of competent jurisdiction that has squarely ruled upon
the applicability of these licensing requirements to the installation of tele-
phone communications equipment such as is present in the instant dispute.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not an employer's employees were represented by
CWA, Local 134, any other union, or no union, was
completely immaterial to the requirement of obtaining
a license. Thus, licensing requirements, such as they
may be, concern the employer's qualifications for the
work and not its assignment of it. They provide no
assistance in our consideration of the merits of this
dispute.
Local 134 also claims that failure to award the work
to it will result in a loss of job opportunities for its
members. In the context of this case, we do not accord
this argument great significance. There are approxi-
mately 6,000 to 8,000 individuals registered as con-
struction electricians with Local 134's seniority system,
and an additional 400 to 500 members of Local 134 are
classified as sound, radio-television, and public address
electricians. Contrasted with this, the Employer em-
ploys an approximate total of 50 communications tech-
nicians throughout the nation. The Employer has
proposed to locate no more than six technicians in the
Chicago area. It is apparent that an assignment of the
work to individuals represented by CWA will have no
substantial effect upon the job opportunities available
to individuals represented by Local 134.
We do not find that the additional considerations
alleged by Local 134 provide substantial support in
favor of an award to individuals represented by that
labor organization.
F. Conclusions
Having considered all pertinent factors present here,
we conclude that employees represented by CWA are
entitled to perform the work in dispute. This assign-
ment is compatible with the collective-bargaining
agreement between CWA and the Employer. Such an
award is consistent with industry and employer prac-
tice, and is not clearly inconsistent with area practice
in Cook County regarding the installation of PBX and
similar systems . In addition, members of CWA possess
the requisite skills and training; the Employer has been
satisfied with their performance, and continued assign-
ment will result in greater efficiency and economy of
operation. We conclude from all of the foregoing that
the Employer's assignment of work to employees repre-
sented by CWA should not be disturbed. On the basis
of the entire record, therefore, we shall determine the
existing jurisdictional controversy by awarding the
work in dispute to employees of the Employer repre-
sented by CWA. In making this determination, we are
assigning the disputed work to the employees of Inter-
national Telephone & Telegraph Corporation, Com-
munications Equipment and Systems Division, who are
represented by Communications Workers of America,
but not to that Union or its members.
G. Scope of the Determination
The work which gave rise to the instant dispute has
been completed . The Employer and CWA request the
award encompass the Employer 's entire operation, i.e.,
nationwide . Alternatively , the Employer and CWA re-
quest that the award encompass Cook County, Illinois.
Local 134's position throughout the hearing and in its
brief to the Board has been that the Notice of Hearing
and, therefore , the scope of the work , was limited to the
jurisdiction of Local 134, which generally consists of
Cook County. As Local 134 has not indicated that it
will renounce its claim to the work in dispute, and as
the Employer has continued to seek sales agreements
within Cook County that include performance of the
work in dispute, we find that the dispute is likely to
recur between the parties . We shall , therefore , encom-
pass Cook County, Illinois, within the scope of our
determination of the dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the foregoing
findings and the entire record in this case, the National
Labor Relations Board hereby makes the following de-
termination of dispute:
1. Employees of International Telephone & Tele-
graph Corporation, Communications Equipment and
Systems Division, who are currently represented by
Communications Workers of America, AFL-CIO, are
entitled to perform the work of terminating the cable
and installing telephone instruments in Cook County,
Illinois.
2. Local Union No. 134, International Brotherhood
of Electrical Workers, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require International Telephone & Telegraph
Corporation, Communications Equipment and Sys-
tems Division, to assign the above work to individuals
represented by Local Union No. 134, International
Brotherhood of Electrical Workers, AFL-CIO.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Local Union No. 134, Inter-
national Brotherhood of Electrical Workers, AFL-
CIO, shall notify the Regional Director for Region, 13,
in writing, whether or not it will refrain from forcing
or requiring International Telephone & Telegraph Cor-
poration, Communications Equipment and Systems
Division, by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the work in dispute to individuals
represented by Local Union No. 134, International
Brotherhood of Electrical Workers, AFL-CIO, rather
than to employees of International Telephone & Tele-
graph Corporation, Communications Equipment and
Systems Division, represented by Communications
Worker of America, AFL-CIO.