Local Union No. 3, IBEW

National Labor Relations Board - Board Decisions

Aug 20, 1981

257 N.L.R.B. 861 (N.L.R.B. 1981)

LOCAL UNION NO. 3, IBEW
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO and New York
Times Newspaper Division of The New York
Times Company and International Association
of Machinists and Aerospace Workers, District
No. 15, AFL-CIO. Case 2-CD-630
August 20, 1981
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by New York Times Newspaper
Division of The New York Times Company,
herein called the Employer, alleging that Local
Union No. 3, International Brotherhood of Electri-
cal Workers, AFL-CIO, herein called Electrical
Workers, 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 International Association
of Machinists and Aerospace Workers, District No.
15, AFL-CIO, herein called Machinists.
Pursuant to notice, a hearing was held before
Hearing Officer David A. Pollack on March 3 and
18, 1981. 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 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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a New York corporation with its principal
place of business in New York, New York, is en-
gaged in the publication and distribution of a daily
newspaper. During the past year, the Employer
purchased supplies from outside the State having a
value of $50,000. The parties also stipulated, and
we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and it will effectuate the purposes of the
Act to assert jurisdiction herein.
257 NLRB No. 123
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Electri-
cal Workers and Machinists are labor organizations
within the meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. Background and Facts of the Dispute
In July 1978, the Employer initiated operation of
the Log E writer as an integral part of its publish-
ing process. The Log E writer is designed to re-
ceive electronic impulses from a Log E reader,'
and convert that information into a laser mask
which then is used for place production. Initially
service and maintenance work on the Log E writer
was performed by an outside contractor, Lutz
Computer Service, Inc., under contracts with Log
E Scan Systems, Inc., the manufacturer of the Log
E writer, and the Employer. The work performed
by Lutz was covered under a warranty which was
provided by Log E Scan Systems and which ex-
pired in December 1979. Thereafter, the Employer
assigned the repair and maintenance work to elec-
tricians represented by Electrical Workers. Prior
thereto, 11 electricians received 6 weeks' training
on the Log E writer at the Employer's premises.
After this initial period of instruction, four or five
of these employees received advanced training at
the manufacturer's facility in Virginia.
In an October 3, 1980, letter to John Mortimer,
executive vice president of the Employer, Machin-
ists requested arbitration concerning the assignment
of the maintenance work on the "Log Escan ma-
chine." Thereafter, Mortimer telephoned John
O'Hara, assistant business manager for Electrical
Workers, and asked if Electrical Workers wished
to participate in the arbitration proceeding request-
ed by Machinists. O'Hara declined and indicated
that, if the Employer attempted to implement an
arbitration award that would deprive electricians of
the work in dispute, Electrical Workers would
engage in self-help to maintain the current assign-
ment. By letter dated October 23, 1980, Mortimer
renewed his invitation to O'Hara to participate in
the arbitration sought by Machinists. O'Hara re-
sponded by letter dated November 5, 1980, where-
in he stated that Electrical Workers would not par-
ticipate in the proposed arbitration, that the con-
tract between Electrical Workers and the Employ-
er clearly assigned the disputed work to employees
represented by Electrical Workers, and that, if nec-
essary, Electrical Workers would engage in strike
activity to protect that assignment. During the
' The repair and maintenance work of the Log E reader is not the subh-
ject of the instant dispute
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing, O'Hara reiterated his earlier threat that
Electrical Workers would, if necessary, engage in
self-help to maintain assignment of the disputed
work.
B. The Work in Dispute
The work in dispute involves the maintenance of
the Log E writer at the Employer's Letterflex
room in its West 43d Street, New York, New
York, facility.
C. The Contentions of the Parties
The Employer contends that the assignment of
the work in dispute to the electricians represented
by Electrical Workers is supported by the collec-
tive-bargaining agreement, skills and training, com-
pany and industry practice, and economy and effi-
ciency of operations.
Machinists asserts that the employees it repre-
sents have the necessary basic skills, since the work
in dispute is mechanical maintenance work and,
given the proper training, they would be able to
perform it.
Electrical Workers takes the position that the
Employer established on the record that the assign-
ment was proper. It also contends that the Board
lacks jurisdiction because it is entitled to strike to
protect its contractual right to the disputed work.
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 and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
Under settled Board policy, there is reasonable
cause to believe that a violation of Section
8(b)(4)(D) has occurred if a labor organization
which represents employees who are assigned the
disputed work puts improper pressure upon an em-
ployer to continue such assignment.2 Thus, Electri-
cal Workers' threats to strike to protect the work
assignment provide sufficient ground for proceed-
ing.
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred and that
there exists no agreed-upon method for the volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that this dispute is properly before the Board for
determination.
2 Iew York typographical Union .o. 6. Ilnernational lypographical
Union, AFL-CIO (New York .ews. Inc.), 252 NLRB 553 (1980).
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors.3 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case. 4
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
The Employer's collective-bargaining agreement
with Electrical Workers in effect at the time the in-
stant dispute arose covers work described as "nec-
essary to or connected with maintenance, servicing,
repairing, relocation, extension, or repairs or substi-
tution of or addition to electrical and electronic
wiring apparatus or equipment," but limited to
"such work as is capable of being performed by a
normal work force." Bound and printed with the
basic collective-bargaining agreement is a letter
agreement "confirming jurisdiction of [Electrical
Workers] over maintenance work on the Log E
equipment" after the transition period in which
Lutz retained the responsibility for this work has
expired and employees represented by Electrical
Workers have been trained for it. The Employer's
collective-bargaining agreement with Machinists
provides only that the "jurisdiction of work being
performed by machinists shall not be altered during
the life of this Agreement." The Electrical Work-
ers' agreement clearly encompasses the work in
dispute; the Machinists' agreement does not, and
this factor strongly favors the assignment of the
work to employees represented by Electrical
Workers.
2. Company and industry practice
Maintenance work on the Employer's Log E
writer at another of its plants has been performed
by an independent contractor who very infrequent-
ly is assisted by employees represented by Machin-
ists. Those employees, however, have performed
only certain specific tasks and never have had the
responsibility for maintaining the equipment. The
only other experience the Employer has had with
this equipment has been in its New York Letterflex
room where the employees represented by Electri-
cal Workers have performed the work in dispute
3N.L.R.B. v Radio & Television Broadcast Engineers Union. Local 1212.
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 US. 573 (1961).
' International Association of Machiniss. Lodge No. 1743. AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
862
LOCAL UNION NO. 3, IBEW
since approximately a year before the instant dis-
pute developed. Industry practice is not extensive,
the equipment in question being relatively new to
the market. Other newspapers using such equip-
ment have used employees with electrical or elec-
tronic engineering backgrounds to maintain and
repair it. On balance, therefore, the factor of com-
pany and industry practice favors assignment of the
work to employees represented by Electrical
Workers.
3. Relative skills
As noted above, electricians represented by
Electrical Workers received 6 weeks' special train-
ing to perform the work in dispute and have been
performing it for some time. In addition, a witness
for the Employer testified that the electronics
background of the electricians is essential to learn-
ing and performing this work. Machinists claims
the employees it represents have the necessary
basic skills and could perform the work adequately
if given proper training. Clearly, the electricians
have the superior relevant skills.
4. Economy and efficiency of operations
The Employer contends that the electricians as-
signed to perform the work in dispute are utilized
efficiently in performing this and other electrical
work, and that assignment of all or part of the
work in dispute to employees represented by Ma-
chinists would require the hiring of additional em-
ployees with less efficient use of their time. Ma-
chinists disputes these contentions but has not pre-
sented any evidence to the contrary. On balance,
the factors of economy and efficiency favor assign-
ment of the work to employees represented by
Electrical Workers.
5. Employer assignment and preference
The Employer has assigned the work in dispute
to its employees represented by Electrical Workers
who perform that assignment. The factor favors an
award of the work to those employees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by the
Electrical Workers are entitled to perform the
work in dispute. We reach this conclusion relying
on all the factors discussed above. In making this
determination, we are awarding the work in ques-
tion to employees who are represented by Electri-
cal Workers, but not to that Union or its member.
The present determination is limited to the particu-
lar controversy which gave rise to this proceeding.
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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
Employees who are represented by Local Union
No. 3, International Brotherhood of Electrical
Workers, AFL-CIO, are entitled to perform the
work of maintenance of the Log E writer at the
Employer's Letterflex room.
863