Local 3, IBEW

National Labor Relations Board - Board Decisions

Feb 8, 1973

201 N.L.R.B. 724 (N.L.R.B. 1973)

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO' and Mansfield
Contracting Corporation and Local 819 E , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America? Case
2-CD-428
February 8, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Mansfield Contracting Corpora-
tion, herein called the Employer, alleging that Local
3 had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign certain
work to its members rather than to employees
represented by Local 819 E.
Pursuant to notice, a hearing was held before
Hearing Officer Thomas T. Trunkes on October 18
and November 3, 1971, and January 13 and
February 3, 1972. All parties appeared and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues.
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 Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, a New York corporation with its
offices and principal place of business in New York
City, is engaged in the business of electrical installa-
tion in the construction industry. During the past
year, the Employer purchased electrical equipment
valued in excess of $50,000 directly from firms
located outside New York State. We find that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
i Herein called Local 3.
2 Herein called Local 819 E
3 The parties stipulated to the inclusion, as part of the instant record, of
the transcript and exhibits in an earlier proceeding involving the same
parties and conduct, Case 2-CC-1205. wherein the Board , in the absence of
exceptions, adopted the Administrative Law Judge 's recommended Order
will effectuate the purposes of the Act to assert
jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Local 3
and Local 363, the alleged successor of Local 819 E,
are labor organizations within the meaning of
Section 2(5) of the Act. However, Local 3 refused to
stipulate as to Local 819 E on the ground that it is no
longer functioning as a labor organization and has
been absorbed by Local 363. As the latter' s president
testified that Local 819 E was still in existence at the
time of the hearing, we find that it is a labor
organization within the meaning of the Act.
III. THE DISPUTE
A. Background and Facts 3
The Employer accepted a subcontract from Burke
& Shaw Corporation, herein called B & S, to perform
electrical work in connection with the renovation of
a vocational school at 226 West 26th Street, New
York City.
The Employer, which is a member of United
Construction Contractors Association, is a party to
the Association 's collective-bargaining agreement
with Local 819 E for the period November 15, 1970,
to November 14, 1973. Pursuant thereto, the Em-
ployer assigned the electrical work on the school
project to its employees.
On or about May 27, 1971, Ralph Lombardi, Local
3's agent, threatened to picket the jobsite if B & S did
not subcontract the electrical work to a contractor
whose employees were local 3 members . When B & S
did not comply with this demand, Local 3 on June 1
commenced picketing4 which continued until it was
enjoined on or about August 10, 1971, by the United
States District Court for the Southern District of
New York.5 During the picketing, some of the
employees at the jobsite ceased work.
B. The Work in Dispute
As stated above, the work in dispute consists of the
electrical tasks involved in the renovation of the
school building.
C. Contentions of the Parties
The Employer takes the position that the factors of
greater skills, efficiency, and economy favor an
based on findings that Local 3 violated Sec 8(bx4Xi) and (iiXB) of the Act
[The title "Trial Examiner" was changed to "Administrative Law Judge" on
August 19, 1972 1
4 The picket signs stated that the Employer was paying "substandard
wages to [its 1 electrical workers "
S 71 Civ. 3390
201 NLRB No. 114
LOCAL 3, IBEW 725
award of the work to its employees who are
represented by Local 819 E or its successor, Local
363.
Local 3 contends that the Board should quash the
notice of hearing. It argues that Local 819 E makes
no claim for the disputed work and Local 363 has not
established its right to represent the Employer's
employees. Local 3 further argues that there is no
jurisdictional dispute herein because it engaged in
area standards picketing.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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.
As stated above, Local 3's agent on or about May
27, 1971, demanded that B & S subcontract the
electrical work to a contractor employing Local 3
members. Upon the refusal of B & S to do so, Local 3
carried out its threat to engage in picketing which
extended from June 1 to August 10, 1971.
As already indicated, Local 3 contends that the
Notice of Hearing should be quashed on two
grounds: (1) No jurisdictional dispute exists because
its picketing had an area standards purpose and (2)
Local 363 did not establish its right to succeed Local
819 E as the collective-bargaining representative of
the Employer's employees. We disagree for the
following reasons:
As to (1), it is clear from the record that Local 3 on
May 27, 1971, stated that the purpose of its picketing
was to support its demand that the disputed work be
transferred to its members. In view of such evidence,
we do not accept at face value the picket signs
protesting the Employer's alleged "substandard"
conditions. As to (2), Local 3's president testified that
on September 17, 1971, the Employer's employees,
who were members of Local 819 E, voted unani-
mously to transfer their affiliation from Local 819 E
to Local 363, a sister local of the Teamsters. We do
not find it necessary to determine the validity of this
transfer as it appears that the Employer's employees
are represented by one or the other of these
Teamsters locals. Moreover, it is not essential that
employees to whom an award is made be represented
by a labor organization .6
On the basis of the entire record, we conclude that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute
6 See Local Union 354, International Brotherhood of Electrical Workers,
AFL-CIO (F G Johnson Company, Incorporated), 200 NLRB No 92,
wherein the Board stated that "it is well established that Sec. 8(b)(4)(D)
encompasses competing claims between a union and a group of unrepre-
sented employees."
is properly before the Board for determination under
Section 10(k) of the Act.7
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 factors.
1. Certification and collective-bargaining
agreements
None of the labor organizations involved herein
has been certified by the Board as the collective-
bargaining representative for a unit of the Employ-
er's employees.
As noted above, the Employer has a collective-
bargaining agreement with Local 819 E for a 3-year
period extending to November 14, 1973. The Em-
ployer has no collective-bargaining agreement with
Local 3.
2. Employer's assignment
Pursuant to its collective -bargaining agreement
with Local 819 E, the Employer assigned the work in
dispute to its employees.
3. Relative skills, efficiency, and economy of
operations
Arthur Shaw, president of B & S, testified without
contradiction that the Employer's employees surpass
Local 3 members in their skills, efficiency, and
productivity.
Conclusions
Having considered all pertinent factors, we con-
clude that the employees of the Employer are entitled
to perform the work in dispute. This award is
consistent with the Employer' s assignment , the skills,
efficiency, and greater productivity of the Employ-
er's employees. In making this determination, we are
awarding the work in question to employees of the
Employer who are represented by a local of the
Teamsters, but not to the Teamsters , Local 819 E,
Local 363, or to their members.
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
7 Although the particular work which gave rise to this proceeding was
scheduled to be completed on October 18, 1971. the underlying jurisdiction-
al dispute has not been resolved . Therefore , we find that the dispute is not
moot. See Local Union 354, International Brotherhood of Electrical Workers,
AFL-CIO (F G. Johnson Company, Incorporated), supra.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Mansfield Contracting Corpora-
tion, who are represented by a local of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , are entitled to
perform the electrical work at the jobsite located at
226 West 26th Street , New York, New York.
2. Local Union No. 3, International Brotherhood
of Electrical Workers, AFL-CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force Mansfield Contracting Corporation to assign
the disputed work to employees represented by that
labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Local Union No. 3,
International Brotherhood of Electrical Workers,
AFL-CIO, shall notify the Regional Director for
Region 2, in writing , whether or not it will refrain
from forcing or requiring the Employer, by means
proscribed by Section 8(b)(4)(D) of the Act , to assign
the disputed work in a manner inconsistent with the
above determination.