Local Union No. 3, Electrical Workers

National Labor Relations Board - Board Decisions

Jul 25, 1975

219 N.L.R.B. 528 (N.L.R.B. 1975)

528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No . 3, International Brotherhood of Elec-
trical Workers, AFL-CIO and Eugene lovine, Inc.
and The Board of Education of the City of New
York and Local 363 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America . Cases 29-CD-178 and 29-CD-182
July 25, 1975
DECISION AND ORDER
QUASHING NOTICE OF HEARING
By MEMBERS FANNING, JENKINS, AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by The Board of Education of the
City of New York (hereafter Board of Education)
and Eugene Iovine, Inc. (hereafter Iovine), alleging
that Local Union No. 3, International Brotherhood
of Electrical Workers, AFL-CIO (hereafter Local 3),
has violated Section 8(b)(4)(D) of the Act. A hearing
was held pursuant to notice in Brooklyn, New York,
on December 12 and 13, 1974,' before Hearing Offi-
cer Martha R. Kave. The Board of Education, Iov-
ine, Local 3, and Local 363, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (hereafter Local 363),2 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.; The
Board of Education, Local 3, and lovine have filed
briefs with the Board.
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 entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
Iovine is a New York corporation engaged in elec-
trical contracting work at various jobsites in New
York. During the past year , Iovine has purchased
1 All dates are in 1974 unless otherwise indicated.
2 Local 363 is the bargaining representative for the other group of em-
ployees whose work assignments are at issue in this alleged labor dispute.
3 Wickham Contracting Co., Inc., and Ralph Perrone , Joint Venturers
(hereafter Wickham) were allowed to appear and participate at the hearing
as interested parties.
and received in excess of $50,000 worth of supplies
from points outside the State of New York. It has
received contracts from the Board of Education for
work at Primary School 175, City Island, the Bronx,
and East New York Vocational High School in
Brooklyn.
The Board of Education is responsible for the edu-
cation of school children of the city of New York.
The Division of School Buildings of the Board of
Education oversees the construction and repair work
on school sites throughout the New York metropoli-
tan area . At the present time, the Board of Education
has awarded approximately 120 major construction
contracts and several minor contracts.
On the basis of the foregoing, we find that bovine
is an employer within the meaning of Section 2(2) of
the Act; that it 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 juris-
diction herein.4
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that Local 3
and Local 363 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Board of Education utilizes a bidding proce-
dure to assign electrical work which is to be done for
either the modernization of an existing facility or the
installation of electrical wiring and equipment in a
facility under construction. Pursuant to the bidding
procedure which requires that contracts be awarded
to the lowest bidder who has met the prequalification
requirements, the Board of Education awarded a
contract to Iovine, an electrical contractor which
hires electricians who are members of Local 363. Iov-
ine commenced work on this project in November
1973. In the past, the Board of Education has award-
ed most of the electrical contracting work on its pro-
jects to employers whose employees have been repre-
sented by Local 3.
The present dispute arose in July 1974, when Local
3 electricians intermittently stopped work on various
Board of Education projects after such action was
authorized at a July 8 Local 3 union meeting . During
a July 19 meeting with Hugh McLaren, Jr., executive
director of the Division of School Buildings for the
For reasons stated elsewhere in this Decision , we find that the Board of
Education is not a statutory employer within the meaning of Sec . 2(2) of the
Act.
LOCAL UNION NO. 3, ELECTRICAL WORKERS
Board of Education, Local 3 union officials stated
that they were apprehensive over the lack of job se-
curity because non-Local 3 contractors had been
awarded work on Board of Education projects. Fol-
lowing this meeting , McLaren sent letters to lovine
and Wickham, another contractor whose employees
are not represented by Local 3, ordering them to
leave their respective worksites.5 The letters in part
stated that "the labor which you are using in the per-
formance of your contracts at the above buildings is
causing work stoppages on various other buildings
and projects of the Board of Education." Although
Iovine received a phone call informing him of the
letter on July 23, he refused to stop work. There is
testimony that thereafter a Board of Education offi-
cial told lovine that Local 3 had informed the Board
of Education that, unless Iovine and other non-Local
3 affiliates were removed from the Board of Educa-
tion jobsites, Local 3 intended to effectuate a work
stoppage at those sites . On July 29, Iovine filed
charges alleging that Local 3 violated Section
8(b)(4)(D) of the Act. The Board of Education filed
similar charges on August 28 .6
B. Work in Dispute
The Board of Education and lovine agree that the
work in dispute involves the assignment of all electri-
cal contracting work for new construction, moderni-
zation, and repairs at schools and other facilities pur-
suant to contracts with the Board of Education.
Local 3 takes the position that there is no work in
dispute among the parties.
C. Contentions of the Parties
The Board of Education contends that the work
stoppages by Local 3 at the various school construc-
tion sites during the summer of 1974 created a dis-
pute within the meaning of Section 8(b)(4)(D) of the
Act. The Board of Education argues that the object
of Local 3's strike action was to force it to cease
doing business with Wickham and lovine, to force
various contractors to cease doing business with the
Board of Education, and to force the Board of Edu-
cation, Wickham, and Iovine to assign work to mem-
bers of Local 3 rather than to those of Local 363.
The Board of Education declines to state a prefer-
5 Although the July 19 letters were sent by regular mail, the Respondent
sent certified letters to the same effect on July 23.
6 On July 23, upon receiving the Board of Education letter , Wickham
filed 8(b)(4)(B) charges against Local 3. lovine and the Board of Education
also filed charges that Local 3 violated Sec . 8(bX4XB) of the Act on July 29
and August 28, respectively . A hearing was held on the consolidated
8(b)(4)(B ) charges on October 24, the final resolution of which is still pend-
ing.
529
ence for either employees of Local 3 or those of Lo-
cal 363 in terms of their respective skills to do the
necessary work, for it is satisfied that the completed
work has been skillful and competent, in view of the
fact that all of the contractors have met the prequali-
fication requirements and the work has passed on-
site inspection. However, the Board of Education as-
serts that any change in the work assignments would
undermine the integrity of its bidding system which
ensures that the electrical work is performed by the
lowest bidder who meets the specifications estab-
lished for each project.
Iovine contends that a dispute exists within the
context of Section 8(b)(4)(D) of the Act because it
was directed by the Board of Education to leave its
projects in order to effectuate the job-security de-
mands of Local 3. Iovine cites the fact that Local 3
bolstered its demands by threats of strike action and
actual work stoppages at Board of Education job-
sites. lovine asserts that the work should be assigned
pursuant to the contracts awarded by the Board of
Education and that there is ample record evidence to
find that the employees assigned to do the work by
lovine have completed such in a skillful and compe-
tent manner.
Local 3 contends that the notice of hearing in the
10(k) proceeding should be quashed as there is no
dispute cognizable under Section 8(b)(4)(D) of the
Act. First, Local 3 claims that the work stoppages did
not result from a jurisdictional dispute but instead
were in support of its claim to represent the electri-
cians in the New York metropolitan area. In addi-
tion, Local 3 argues that the work stoppages were
utilized by it to convince Board of Education offi-
cials to adopt a nondiscriminatory layoff plan for
electricians who are not needed at any given time for
its projects. Local 3 also points to the absence of
reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) of the Act has occurred in light of
lovine's testimony that Local 3 did not claim any
work or request any assignment of work from him. In
fact, Local 3 claims it was unaware that Iovine had
been awarded a Board of Education contract at the
time Iovine was ordered to leave its jobsites.
D. Applicability of the Statute
Before the Board may proceed to a determination
of dispute under 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. We are not sat-
isfied that such a violation has occurred in the pres-
ent case.
It should be noted initially that a sharp controver-
sy exists over whether the Board of Education or Iov-
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ine is the employer that controls the assignment of
the disputed work. In our judgment, it is unnecessary
to resolve this issue for whether it be Iovine or the
Board of Education that is deemed to be the employ-
er which controls the actual work assignment, the
same result would follow since we are required to
quash the notice of hearing on the basis of the evi-
dence before us.
The Board of Education is an agency of the State
of New York and, as a governmental entity, it is stat-
utorily excluded from the definition of employers
over which this Board may assert jurisdiction under
Section 2(2) of the Act. While it is true that a govern-
mental entity, such as the Board of Education, is
considered a person within the meaning of Section
8(b)(4) of the Act,' it has not and cannot be held to
be an employer for any purpose under the Act due to
the restriction in Section 2(2). Thus, if in fact, the
Board of Education is deemed to be in control over
the assignment of the work alleged in dispute and
Local 3's work stoppages were for the purpose of
forcing the Board of Education to assign the work in
issue to members of Local 3 rather than to members
of Local 363, we would still be required under the
Act to quash the rotice of hearing.'
If, on the other hand, lovine is considered to be
the employer for purposes of assigning the work,
there is no evidence of any threats or other pro-
scribed conduct being directed at lovine or the
Board of Education for the purpose of forcing lovine
to reassign the work in issue to Local 3 members. In
fact, during the relevant period, lovine had no com-
munication or contract with Local 3 representatives.
During the same period, Local 3's demand upon the
Board of Education was for replacement of Iovine
with a Local 3 contractor. In such circumstances, we
are constrained to conclude that there is no reason-
able cause to believe that Local 3 has engaged in
conduct violative of Section 8(b)(4)(D) of the Act
with respect to Iovine.
Accordingly, for the foregoing reasons, we find
that there is no reasonable cause to believe that Lo-
cal 3 has engaged in conduct violative of Section
8(b)(4)(D) of the Act and we shall quash the notice of
hearing.
ORDER
7 Local 254, Building Employees International Union , AFL-CIO (University
Cleaning Co), 151 NLRB 341 (1965), enfd in pertinent part 376 F.2d 131
(C.A. 1, 1967); District Lodge No 123, International Association of Machin-
ists, and Aerospace Workers, AFL-CIO 167 NLRB 977, 978, fn . 3 (1967),
and cases cited therein , Local 3, International Brotherhood of Electrical
Workers, AFL-CIO (Mansfield Contracting Corporation), 205 NLRB 559
(1973).
It is hereby ordered that the notice of hearing is-
sued in this case be, and it hereby is, quashed.
8 There is no evidence which would support the conclusion that the Board
of Education was the agent of lovine or any other contractor to which it
awarded work.