Local 581, IBEW

National Labor Relations Board - Board Decisions

Mar 31, 1976

223 N.L.R.B. 538 (N.L.R.B. 1976)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 581, International Brotherhood of Electrical
Workers, AFL-CIO and National Telephone and
Signal Corporation and Communications Workers
of America, AFL-CIO and Local 1272, Communi-
cations Workers of America, AFL-CIO. Case 22-
CD-276
March 31, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by National Telephone and Signal
Corporation, herein called National Telephone, al-
leging that Local 581, International Brotherhood of
Electrical Workers, AFL-CIO, herein called Local
581, has violated Section 8(b)(4)(D) of the Act, by
engaging in certain proscribed activities with an ob-
ject of forcing or requiring National Telephone to
assign disputed work to employees represented by
Local 581 rather than to employees represented by
Local 1272, Communications Workers of America,
AFL-CIO, herein called CWA.
A duly scheduled hearing was held before Hearing
Officer George H. Abrams on October 2 and 23,
1975, and November 6, 7, and 11, 1975. All parties
desiring to do so 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, Local 581 and
CWA filed briefs.
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 Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
1. THE BUSINESS OF THE EMPLOYER
National Telephone is a corporation engaged in
the business of installing intercom and paging sys-
tems, telephones, and related communications sys-
tems. During the preceding 12-month period Nation-
al Telephone purchased, transferred, and delivered
to its New York office electrical wires and other
goods and materials, valued in excess of $50,000,
from other enterprises located within New York
which had received the same goods and materials in
interstate commerce directly from States in the Unit-
ed States other than New York. We find that Nation-
al Telephone is an employer within the meaning of
Section 2(2) of the Act. We further find that National
Telephone is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
11. LABOR ORGANIZATIONS
The parties stipulated, and we find, that the Com-
munications Workers of America, its Local 1272, and
Local 581 IBEW are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The parties stipulated that the work in dispute in-
volves the wiring for and installation of horns, ceiling
speakers , microphones , and intercom units for a pub-
lic address system at the United Parcel Service, Inc.,
799 Jefferson Road , Parsippany , New Jersey, situs
and only at that situs.
B. Background
National Telephone has a collective-bargaining
agreement with CWA which represents its employ-
ees. Local 581 has never represented National
Telephone's employees. National Telephone has al-
ways performed its business with its own employees.
Glictronix Corporation and Automated Commu-
nications are corporations engaged in the business of
contract work in the intercommunications field.
United Parcel Service, Inc., herein called UPS, is a
corporation engaged in the business of delivering
packages. It has offices in various states, including a
new facility at Parsippany, New Jersey.
Allan Electric Co., Inc., is a corporation engaged
in electrical work. Its employees are represented by
Local 581. At all material times herein, Allan Electric
was engaged in electrical contracting work at the
UPS facility at Parsippany, New Jersey.
In August 1975' UPS, intentionally bypassing Al-
lan Electric Co., contracted with Glictronix for the
installation of an intercom and paging system at its
facility in Parsippany. UPS imposed a strict deadline
for the installation to be completed by September 18.
Glictronix subcontracted this work to Automated
Communications, which in turn subcontracted the
work to National Telephone.
1 Unless otherwise specified, all dates hereafter are 1975.
223 NLRB No. 73
LOCAL 581, IBEW 539
On Tuesday, August 26, National Telephone as-
signed its employees to survey the work at the UPS
site. On Wednesday their installation work was unin-
terrupted. On Thursday, August 28, however, Ken
Smith, the Local 581 steward at the UPS site, ap-
proached the CWA workers, identified himself as
steward, and claimed the work as belonging to Local
581. The following day, Smith approached James
Barber, the UPS regional projects engineer at the
Parsippany site, and claimed the work for Local 581.
Smith further stated that, if the National Telephone
employees continued to do the work, Local 581 em-
ployees might not be able to work on the next work-
day. Following this Barber arranged an agreement
between Local 581 and CWA employees which pro-
vided that each would continue working that day and
that the CWA employees would not work over the
long Labor Day weekend or on Tuesday until the
business representatives could meet in order to settle
the dispute. Neither Local 581 nor CWA employees
performed any of the disputed work over the week-
end.
On Tuesday Local 581 Representative Frank Kelly
and CWA Representative Joseph Clarkin met con-
cerning the disputed work. However, they were un-
able to reach any agreement. Clarkin testified that at
the meeting Kelly instructed Smith to pull the Local
581 employees off the job if the National Telephone
employees resumed work. Kelly testified that he told
Smith to come to his (Kelly's) office if the CWA
workers began working on the job.
Upon learning of the representatives' failure to re-
solve the dispute, Barber contracted Barry Glick of
Glictronix, Inc., and told Glick to settle the dispute
between the Unions in order to avoid any work de-
lays or stoppages at the site. Later Tuesday af-
ternoon, Glick informed National Telephone's vice
president, Henry Koch, that National Telephone no
longer had the contract for the installation work.
Glick also contacted Kelly and requested that Local
581 members be referred to do the installation work
at the Parsippany plant. The next day Local 581
members reported to the worksite to perform the in-
stallation of the paging and intercom system. They
continued on the job until installation was completed
at the end of the next week.
C. Contentions of the Parties
Local 581 contends that the notice of hearing
should be quashed because there is no jurisdictional
dispute properly before the Board . It argues that
there is no reasonable cause to believe a violation of
Section 8 (b)(4)(D) of the Act occurred and the work
in dispute has been completed. On the merits Local
581 contends that the work should be assigned to
employees it represents because National Telephone
is incompetent to perform the work since, if it does, it
will be in violation of a New Jersey statute requiring
electrical contractors to obtain electricians' licenses.
CWA contends that Local 581 has violated Section
8(b)(4)(D) of the Act by threatening, coercing, or re-
straining National Telephone to compel it to assign
the disputed work to members of Local 581. CWA
further contends that the work should be assigned to
its members based upon past practice, the collective-
bargaining agreement between CWA and National
Telephone, skills and training, efficiency and econo-
my of operation.
D. Applicability of the Act
Before the Board may proceed with a determina-
tion of a 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 voluntary method for
resolving the dispute.
At the hearing the parties agreed that there is no
agreed-upon method for the resolution of the dis-
pute.
Local 581 contends that the dispute is moot be-
cause the work in question is finished. The Board has
long held that a jurisdictional dispute is not moot, in
spite of the completion of the work involved, where
there is evidence of similar disputes between the par-
ties in the past, or there is nothing to indicate that
such disputes will not arise in the future.' The record
indicates that National Telephone will continue to
install the type of work involved within the geo-
graphical jurisdiction of Local 581 and there is evi-
dence that Local 581 will continue to assert exclusive
jurisdiction over the work involved. There is a real
likelihood, therefore, that similar disputes will arise
in the future. Accordingly, we find that the dispute is
not moot.
We also find no merit in Local 581's contention
that the notice of hearing should be quashed because
it did not engage in conduct proscribed by Section
8(b)(4)(D) of the Act. The evidence establishes that
both Smith and Kelly demanded that the work be
assigned to Local 581 members. These demands were
accompanied by assertions that Local 581 employees
2 International Union of Operating Engineers Local No. 18, AFL-C1O (Fire
Protection and Sprinkler Associates, Inc.). 202 NLRB 1113, 1114 (1973): Sub-
ordinate Union No. 30 of Illinois of The Bricklayers, Masons and Plasterers
International Union of America, AFL-CIO (Cerro Copper and Brass Compa-
ny), 159 NLRB 1430, 1434 (1966); Local Union 224 and Local Union 830.
United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO (Bernard Pipe
Line Company), 152 NLRB 902, 910 (1965).
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might not report to work if the CWA members con-
tinued on the job. As a result of Local 58 l's demands
UPS' regional projects engineer, Barber, began to
pressure Glictronix to solve the dispute. In order to
avoid a possible work stoppage and to settle the dis-
pute, Glictronix terminated its subcontract with Na-
tional Telephone and performed the installation
work with Local 581 members. On the basis of these
facts, and without resolving the issues of credibility
raised by the testimony, we are satisfied that there is
reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) has occurred and that the dispute is
properly before us for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors.' As the Board has stated, the determination in a
jurisdictional dispute case is an act of judgment
based on commonsense and experience in weighing
these factors.
1. Collective-bargaining agreements
Neither Local 581 nor CWA has been certified by
the Board as collective-bargaining representative for
National Telephone's employees. However, National
Telephone and CWA are parties to an "Article of
Agreement" whereby National Telephone recognizes
CWA as the exclusive collective-bargaining represen-
tative of its employees. That agreement is effective
from July 6, 1973, to July 6, 1976, a term covering the
relevant times herein.
2. Employer past practice
Evidence was adduced that in the performance of
its business National Telephone has always used its
own employees represented by CWA.
3. Skills and training
The work involved herein does not require special
skills or training for proper performance. In fact, the
work is physical rather than mental in nature. Gener-
ally, the work involves the laying of cables, the at-
tachment of speakers and squawk boxes to ceilings
and walls, and the attachment of color and number
coded wires to the speakers, receivers, and amplifiers.
Essentially, training occurs on the job. The record
3 N. L. R. B. v. Radio & Television Broadcast Engineers Union. Local 1212.
International Brotherhood of Electrical Workers, AFL-CIO /Columbia Broad-
casting System/. 364 U.S. 573 (1961).
establishes that the employees represented by CWA
and Local 581 possess equally the requisite skills to
properly perform the work in dispute.
4. Area practice
The evidence discloses that the practice of numer-
ous electrical contractors in the New Jersey area is to
use employees represented by Local 581 to perform
work similar to that involved herein. The employers
testifying to their use of Local 581 members for such
work indicated that they either have collective-bar-
gaining agreements with Local 581 or have agree-
ments with different locals of IBEW, and have
signed letters of assent with Local 581 covering work
performed in its jurisdiction.
Local 581's contention that a New Jersey statute
requiring electrical contractors to obtain electricians'
licenses precludes the award of the work to National
Telephone employees represented by CWA is with-
out merit. While the New Jersey law on its face is not
clear as to its exact impact on this case, Local 581's
counsel authoritatively asserted at the hearing that
the statute only "requires the licensing of the con-
tractor and not the employee." Thus, the New Jersey
statute would not preclude CWA members from per-
forming the work herein and it does not statutorily
impose an area standard or practice of using only
Local 581 members to perform this work.
Conclusions
Upon the record as a whole, and after full consid-
eration 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 upon Na-
tional Telephone's assignment of the disputed work
to its own employees, the fact that the assignment is
consistent with National Telephone's past practice,
and the collective-bargaining agreement between
National Telephone and CWA. The fact that mem-
bers of both Unions possess the necessary skills and
training to perform the work is determinative only to
the extent that it establishes that CWA members
have the ability to satisfactorily perform the work.
Finally, we find that the area practice of using Local
581 employees to perform similar work is insufficient
to persuade us to award the work to Local 581 mem-
bers. We shall, accordingly, determine the existing
jurisdictional dispute by deciding that employees
represented by CWA, rather than those represented
by Local 581, are entitled to the work in dispute. In
making this determination, we are assigning the dis-
puted work to the employees of National Telephone
LOCAL 581, IBEW 541
who are represented by CWA, but not to that Union
or its members.
Scope of the Determination
In its brief CWA urged the Board to issue a broad
award which would encompass all future sites within
Local 58l's geographical jurisdiction at which Na-
tional Telephone would perform work similar to the
work in dispute. No evidence was introduced at the
hearing to show that Local 581, CWA, and National
Telephone have been parties to previous work dis-
putes. Instead, CWA seeks to rely upon jurisdictional
disputes concerning similar interconnect systems,
work which involved different locals of IBEW and
CWA Internationals and different employers. We
find that the record will not support a finding neces-
sary for the granting of a broad order, that the dis-
pute promises to recur between the parties. Our pre-
sent determination, therefore, is limited to the UPS
Parsipanny, New Jersey, facility, at which the dispute
arose.
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 pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of National Telephone and Signal
Corporation represented by Local 1272, Communi-
cations Workers of America , AFL-CIO, exclusively,
are entitled to perform the work of wiring for and
installation of horns, ceiling speakers , microphones,
and intercom units for an address system at the Unit-
ed Parcel Service , Inc., 799 Jefferson Road , Parsippa-
ny, New Jersey, situs.
2. Local 581, International Brotherhood of Elec-
trical 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 repre-
sents.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Local 581, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
shall notify the Regional Director for Region 22, 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.