Local 3, IBEW

National Labor Relations Board - Board Decisions

May 7, 1975

217 N.L.R.B. 834 (N.L.R.B. 1975)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 3, International Brotherhood of Elec-
trical Workers , AFL-CIO (Teltronics Services,
Inc.)' and Communications Workers of America,
AFL-CIO. Case 2-CD-481
employer engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
May 7, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
This is a proceeding pursuant to Section 10(k) of the
National Labor Relations Act, as amended, following
the filing of a charge on October 7, 1974, by Communi-
cations Workers of America, AFL-CIO (herein
CWA), alleging that Local Union No. 3, International
Brotherhood of Electrical Workers, AFL-CIO (herein
Local 3), has violated Section 8(b)(4)(D) of the Act, by
engaging in certain proscribed activities with the object
of forcing or requiring Teltronics Services, Inc., to as-
sign disputed work to Local 3, rather than to employees
of the Employer who are represented by CWA.
Pursuant to a notice of hearing and an order re-
scheduling hearing, a hearing was conducted before
Hearing Officer Alexander P. Rosenberg on November
13 and 15, 1974, and January 3, 1975. All parties desir-
ing to do so appeared at the hearing and were afforded
a full opportunity to be heard and to present evidence
bearing on the issues.'
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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby affirmed.
Upon the basis of the entire record in this case, in-
cluding the briefs, the Board makes the following find-
ings:
I THE BUSINESS OF THE EMPLOYER
Teltronics, a New York corporation, is engaged in
the business of installing telephone intercommunica-
tions and paging systems. In the past year, it derived
revenues in excess of $1 million and purchased supplies
and equipment valued in excess of $50,000 directly
from outside the State of New York. The parties stipu-
lated to these facts and we find that Teltronics is an
1 Names of Repsondent Union and Employer appear as amended at the
hearing
2 The parties stipulated to receive in evidence the transcnpt , record, and
exhibits of the proceedings in Danielson v. Local Union No. 3, International
Brotherhood of Electrical Workers, AFL-CIO, 74 Civil 4782 (D.C N Y.).
All parties stipulated, and we find, that Local 3 and
CWA are labor organizations within the meaning of
Section 2(5) of the Act.
III EVIDENCE
A. The Work in Dispute
The dispute concerns the assignment of the work of
installing telephone equipment, including cable run-
ning, PABX installation and testing, and telephone
hookup, in a building located at 75 Rockefeller Plaza,
New York, New York.
B. Background
Teltronics has a collective-bargaining agreement
with CWA to represent all employees that it has on its
payroll. Local 3 has never represented employees on
Teltronics payroll. During busy periods, Teltronics
does subcontract cable-pulling work to other employ-
ers whose employees are not represented by CWA.
About 5 percent of its subcontracts go to employers
who employ members of Local 3, but, according to
Teltronics, such subcontracting is done only when Tel-
tronics is forced to do so to avoid disputes of the type
which exists in this case.
Scandinavian National Tourist Office, herein called
Scandinavian, is a firm composed of the international
tourist bureaus of Iceland, Norway, Sweden, Denmark,
and Finland, engaged in promoting tourism and dis-
pensing information concerning the aforementioned
countries to the various travel agencies within and
without the State of New York.
Rockefeller Center, Inc., owns and operates the com-
plex of buildings known as Rockefeller Center. It leased
one of these buildings, 75 Rockefeller Plaza, to Warner
Communications, Inc., and Warner in turn leased
space in said building to Scandinavian.
Benjamin Electric Engineering Company, Inc.
(herein Benjamin), is an electrical contractor in the
building and construction industry with offices in New
York. Its employees are represented by Local 3. Benja-
min was engaged in certain electrical contracting work
at 75 Rockefeller Plaza at times material herein.
In late September 1974, Scandinavian engaged Tel-
tronics to install a complete telephone system for Scan-
dinavian on the 11th floor of 75 Rockefeller Plaza.
Teltronics commenced the work of installing this tele-
phone system for Scandinavian on or about October 1,
1974, and assigned its own employees, who are mem-
217 NLRB No. 142
LOCAL 3, IBEW 835
bers of and represented by CWA, to perform this work.
The work was to be completed by October 5, 1974.
Benjamin , whose employees are members of and repre-
sented by Local 3, had for some time been performing
electrical contracting work at 75 Rockefeller Plaza on
various floors in the building including the 11th floor.
On or about October 2, 1974, Lou Pingar, a Local 3
steward, visited the 11th floor of that building, where
Teltronics employees were performing telephone in-
stallation work pursuant to Teltronics' contract with
Scandinavian. Pingar asked what the CWA members
were doing, and mentioned that IBEW members had
been performing this work previously. Pingar advised
the Teltronics employees that Local 3 had jurisdiction
over common carrier work, such as telephone systems.
Pingar asserted that Teltronics' employees had no right
to complete the work, ending with the statement, "If
we don't do the work, we are going to walk." Pingar
informed the Benjamin foreman, Mr. Carlo, "You bet-
ter tell the superintendent that if CWA members do the
work, we're going to quit." The evidence in the district
court proceeding revealed that Benjamin employees en-
gaged in work stoppages on the 11th floor on October
2, but continued to work on other floors. However, on
October 8, members of Local 3 stopped doing all elec-
trical work in the entire building. The court' record
further discloses that representatives of Local 3 threat-
ened Rockefeller Center, Warner Communications,
Scandinavian, and Teltronics with work stoppages if
the work in issue was performed by employees repre-
sented by CWA, rather than by employees represented
by Local 3. The evidence also disclosed that following
these threats, and at the urging of Rockefeller Center
and Scandinavian, in order to get the job done, a sub-
contract for the work in issue went to Zweifel Electric
on October 9, 1974, whose employees are represented
by Local 3. The work was finally completed on October
15, 1974. Additional evidence was adduced concerning
similar jurisdictional claims by Local 3 for telephone
installation work being performed at 63rd Street and
Fifth Avenue for GMG Construction Co. on October
30, 1974.
C. Contentions of the Parties
Local 3 contends that the notice of hearing should be
quashed because Local 3 makes no claim for the work
and it would not contest the merits of the assignment
of the work. It further contends that it did not author-
ize or ratify Pingar's conduct. It also contends that the
record does not justify a broad assignment of the work
in dispute because there is no "explanation" of the
work performed pursuant to Teltronics' other subcon-
ti acts or assignments to other employers whose em-
ployees are -either nonunion or are represented by Local 3.
CWA contends that Local 3 is responsible for the
threats, coercion, and the work stoppages , and that the
assignment to Teltronics' employees represented by it
should be affirmed. It further contends that the work
in dispute should be awarded to employees of Teltron-
ics represented by CWA in all areas where Local 3 has
jurisdiction.
D. The Applicability of the Statute
Before the Board may proceed with a determination
of the 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.
We find no merit in Local 3's contention that the
notice of hearing should be quashed. The uncon-
tradicted testimony of several witnesses shows that
Pingar3 identified himself as a steward of Local 3 in
Rockefeller Center, made a claim for the telephone
work, indicated that there were electricians there to do
the same work that Teltronics assigned to its own em-
ployees, and asserted that Local 3 does all the common
carrier work on the premises. In response to a state-
ment by a CWA representative, Clarkin, that the em-
ployees to whom the work was assigned were going to
do the work, Pingar replied that as long as CWA mem-
bers were on the 11th floor Local 3's members would
refuse to do other work to which they were assigned.
Subsequently, all electricians did leave the floor. We
find that Pingar was an agent of Local 3, and that he
unequivocally made a claim for the work in dispute.
We also find that Local 3's letter addressed to the
Regional Director, dated October 11, 1974, 9 days after
Pingar's claim, and written after the charge was filed,
is not an effective disclaimer of the work in dispute.
Local 3 never informed the Employer, Teltronics, that
it was disclaiming the work in dispute.`
Accordingly, we find that Local 3 claims the work
for its members, and that competing claims for the
work in dispute have been made by two employee
groups. Therefore,' inasmuch as Local 3 vacated the
jobsite and threatened Rockefeller Center, Warner,
Scandinavian, and'Teltromcs with work stoppages to
force reassignment of the work, we find that there is
reasonable cause to believe that Section 8(b)(4)(D) has
been violated and that the dispute is properly before the
3 Pingar was not called to testify
4 we also agree that the Hearing Officer properly denied Local 3's request
to subpena "all books and records setting forth every subcontract and as-
signment of telephone work to another employer by Teltronics, Inc., since
January 1, 1974," because it was not within the scope of the notice of
hearing. Furthermore, those records would have no bearing on the outcome
of this proceeding as our determination herein applies only to the work
i performed by Teltronics
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board for determination under Section 10(k) of the
Act.
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. As
the Board has stated, the determination in a jurisdic-
tional dispute case is an act of judgment based on com-
monsense and experience in weighing these factors. We
find the following factors are relevant in making a
determination of the dispute before us.
1. Collective-bargaining agreements
Neither Local 3 nor CWA has been certified by the
Board as the collective-bargaining representative for
Teltronics' employees. However, Teltronics recognized
CWA as collective-bargaining agent for its employees
on April 21, 1973, and entered into a bargain agree-
ment which expires on April 1, 1976. This factor
weighs heavily in favor of assigning the work to em-
ployees represented by CWA.
2. Employer past practice
Evidence was adduced which demonstrated that Tel-
tronics, pursuant to its bargaining agreement, generally
assigns the installation of telephone systems to its own
employees who are represented by CWA. Teltronics
has; however, in approximately 30 percent of its jobs,
subcontracted the running of cable to other employers,
whose employees are not represented by CWA. The
Employer conceded that this subcontracting practice
was followed because of manpower shortages in the
Teltronics staff except in some instances where a sub-
contractor was engaged to perform the work to avoid
conflicts with Local 3. This factor also favors an award
to the employees represented by CWA.
3. Skills and training
The record establishes that employees of the Em-
ployer possess the skills necessary to perform the dis-
puted work. The work is performed with the simplest
of tools and does not require the skills of a journeyman
electrician and has been performed capably and to the
Employer's satisfaction by its own employees repre-
sented by CWA. As electricians represented by Local
3 also possess these skills, this factor does not favor an
award in either respect.
Conclusions
Upon the record as a whole, and after full considera-
tion of all relevant factors involved, we conclude that
the employees of the Employer, represented by CWA,
are entitled to perform the disputed work. In reaching
this conclusion, we have relied on the Employer's as-
signment of the disputed work to its own employees,
the fact that this assignment is consistent with the Em-
ployer's predominant past practice, and the collective-
bargaining agreement between- the Employer and
CWA. Our determination is limited to the particular
controversy which gave rise to this -proceeding. Our
award is made to the employees of Teltronics, Inc.,
represented by CWA, and not to that Union or its
members.
CWA requested that the work in dispute be awarded
to employees of Teltronics represented by CWA at all
locations wherein Local 3 has jurisdiction, citing as
argument therefor that Local 3 and other IBEW locals
in New York and elsewhere have established a consist-
ent pattern of disrupting work performed by public and
private telephone and communications companies
whose employees are represented by CWA. In this re-
spect we note that Local 3 did advise the Regional
Director that there will be no future problems at the
jobsite. However, the record before us does not define
the jurisdictional limits of Local 3. The Board need not
confine its award to a single job if there is evidence that
similar disputes will occur in the future. Therefore, we
conclude that the evidence herein does not justify a
broader award at this time.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees of Teltronics Services, Inc., repre-
sented by Communications Workers of America,
AFL-CIO, exclusively, are entitled to perform the
work of installing telephone equipment, including cable
running, PABX installation and testing, and telephone
hookup, at the Scandinavian National Tourist Office,
in the office building located at 75 Rockefeller Plaza,
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 or
require the assignment of the above work, or any part
thereof, to its members or to employees it represents.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Load Union No. 3, Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO, shall notify the Regional Director for Re-
gion 2, in writing, whether or not it will refrain from
forcing or requiring, by means proscribed by Section
8(b)(4)(D) of the Act, the assignment of the disputed
work in a manner inconsistent with this determination.