Millar Elevator Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1977

229 N.L.R.B. 1200 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Elevator Constructors, AFL-
CIO, Local Union No. I and Elevator Industries
Association and Millar Elevator Industries, Inc.
and International Brotherhood of Electrical Work-
ers, AFL-CIO, Local Union No. 3. Case 2-CD-
528
June 3, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Elevator Industries Association,
herein called the EIA, alleging that International
Union of Elevator Constructors, AFL-CIO, Local
Union No. i, herein called Local 1, had violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Millar Elevator Industries, Inc., herein
called the Employer or Millar to assign certain work
to members of Local I rather than to employees
represented by International Brotherhood of Electri-
cal Workers, AFL-CIO, Local Union No. 3, herein
called Local 3.
Pursuant to notice, a hearing was held before
Hearing Officer Howard Shapiro on January 19,
1977. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-
examine the witnesses, and to adduce evidence
bearing on the issues.' The employees of the
Employer represented by Local 3 made an appear-
ance separate from that of Local 3.2
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 proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, a New York corporation with its principal
I The Employer and the EIA are jointly represented and took identical
positions. Thus, the positions set forth herein as those of the Employer are
also those of EIA.
2 The parties agreed that the employees of Millar seeking the work
would, for the purposes of identification, be referred to as the employees
represented by Local 3. As discussed infra, Local 3 and the Millar employees
it represents took two conflicting positions on the proceeding. Local I
moved that these employees not be permitted to intervene. However, the
229 NLRB No. 170
place of business in New York, New York, is
engaged in the installation, repair, and service of
elevators and elevator equipment. During the past
year, the Employer purchased goods and supplies
from outside the State having a value of $50,000. EIA
is an employer association of elevator construction
companies. The parties also stipulated, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local I
and 3 are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In 1974, Millar contracted to "modernize" or
renovate completely nine elevators at the Plaza Hotel
in New York City. Millar, who has a collective-
bargaining agreement with Local 3, assigned the
work to its employees represented by Local 3. In
April 1976, after the work on two of the elevators had
already been completed, Local I learned that this
work was being done by these employees and filed a
charge with the Building and Construction Trades
Council, herein BTC, of which both Locals I and 3
are members. (The Employer is not a member of the
BTC.) The Council recommended that the parties file
for arbitration with the Building Trades Employers
Association, herein the BTEA, of which both Unions
are also members. (The Employer is not a member of
the BTEA.) On July 27, 1976, the BTEA made a
determination in which the work was awarded to
Local 1.
On or about July 29, 1976, Local 3 Assistant
Business Manager James O'Hara told Millar that the
employees represented by Local 3 would have to get
off the job, pursuant to the BTEA award. Local 3
Business Representative John Kromer directed the
Local 3 members to leave the job, which they did for
approximately a week. The Employer sought an
injunction against the walkout. The Federal district
court subsequently issued a temporary restraining
Hearing Officer overruled the objection and they intervened. At the
conclusion of the proceeding, Local I again submitted that the ruling was
erroneous and this contention has been referred to the Board. The record
reveals that the employees in question have a substantial interest in the
outcome of the proceeding. Thus, we conclude that in the interests of
fairness and a more complete record the Hearing Officer properly permitted
the appearance and intervention by said employees in this proceeding.
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ELEVATOR CONSTRUCTORS, LOCAL UNION NO. I
order (TRO) requiring the employees to return to
work.3 As a result of that order, the employees
returned to work on August 11, 1976. Thereafter,
Employer, Local 3, and Local I pursued the
injunction proceeding to the United States Court of
Appeals for the Second Circuit. That court found
that there was insufficient proof of irreparable harm
to justify any injunctive relief. Thereafter, Local 3
directed its members to leave again, and a second
work stoppage ensued. Subsequently, on October 6,
1976, at a Local 3 meeting, the employees, in
disagreement with Local 3's posture of disclaiming
the work, told the Employer and Local 3 that they
would not comply further with the latter's directives,
and then resumed performing the work in dispute.
On October 13, Local I Business Agent Connolly
visited the job to see if Local 3 members had
resumed work and a discussion with Local 3
employees concerning who should be performing the
work ensued. That conversation is fully set forth in
section D, infra.
B. The Work in Dispute
The work in dispute involves the modernization of
elevators 5, 6, 7, and 8 at the Plaza Hotel in New
York City and entails the replacement of virtually all
component parts of the elevators.
C. The Contentions of the Parties
Local I contends that the Board should quash the
notice of hearing as there is no reasonable cause to
believe that Section 8(b)(4)(D) has been violated and,
since Local 3 has disclaimed the work, there are not
two competing groups of employees claiming the
work. In view of this position, Local 1, in its brief to
the Board, did not address itself to the determination
of the dispute.
Local 3 takes the position that, while it did once
claim the work, it has now disclaimed it since it
agreed to abide by the BTEA's determination and
that the Board should therefore quash the notice of
hearing.
Employer contends that there is reasonable cause
to believe that Section 8(b)(4XD) has been violated
and that, since rival groups of employees (i.e., those
represented by Local I and Local 3) continue to
claim this disputed work despite the disclaimer made
by Local 3, Local l's motion to dismiss the
proceeding should be denied. Employer also con-
tends the work should be assigned to employees
represented by Local 3 on the basis, inter alia, of its
collective-bargaining agreement with Local 3, job
assignment, preference, past practice, and the factors
3 The court continued the TRO in effect pending appeal even though it
denied the permanent injunction.
of skill, training, and efficiency and economy of
operations.
The Millar employees represented by Local 3 did
not file a brief with the Board. At the hearing, they
took the same position as the Employer.
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 (1) there is reasonable
cause to believe that Section 8(bX4)(D) has been
violated, and (2) the parties have not agreed upon a
method for the voluntary adjustment of the dispute.
With respect to (1) above, on October 13, 1976,
Local I Business Representative Thomas Connolly
visited the jobsite. According to the testimony of
employee Dennis Chaisson, when Chaisson inquired
into the purpose of Connolly's visit, Connolly
responded that he was there to see if Local 3
members were back on the job that was, he asserted,
rightfully within Local l's jurisdiction. Chaisson then
told Connally to leave, to which Connolly allegedly
replied, "[Tlhe next time I come back I will have to
bring some of the boys." Chaisson's account of the
incident was corroborated by the testimony of
Ronnie Shabunis, another Local 3 employee who
was present at the time.
Connolly testified that he visited the jobsite to
ascertain whether or not work was being performed
on the job at that time. He observed employees
working on the 18th floor and then attempted to
leave the premises. One of the employees asked if he
could help, and Connolly replied, "no," that he had
seen what he wanted to, and thanked the employee.
The employee then asked who he was and Connolly
replied, "Local 1." Connolly testified that at the time
he was walking down the steps from the 18th to the
17th floor the employee followed, advising Connolly
to stay out of the motor room. Connolly asked the
employee who was going to stop him, and the
employee replied that the others present would.
Connolly stated he would be back and left.
Thus, the evidence as to what occurred on October
13 is in conflict. However, in a proceeding under
Section 10(k) of the Act, the Board is required only
to find that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated before making a
determination of the dispute out of which the alleged
unfair labor practice has arisen. In so doing, we need
not conclusively resolve conflicts in testimony.4 A
threat by Connolly that when he came back to the
site he would "bring some of the boys," if made,
would constitute a threat to Millar employees with
4 International Brotherhood of Electrical Workers, Local Union 103 of
Greater Boston (Maki Electric, Inc), 227 NLRB 1745 (1977).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fear of being harmed if they continued to perform
work claimed by Local 1. Accordingly, we conclude
that there is reasonable cause to believe that Local I
made threats with an object of forcing the Employer
to assign employees it represents the work in dispute
in violation of Section 8(b)(4)(D).5
With respect to (2) above, we find no merit in
Local l's claim that the procee. ing be dismissed
because of Local 3's disclaimer of the work in
dispute. The employees of Millar represented by
Local 3 claim the work in dispute and indeed are
performing the work. We find that these employees'
demands effectively nullify the effect of the disclaim-
er. 6
Finally, we find no merit in Local l's claim that
there exists a method for the voluntary settlement of
the dispute. Neither EIA nor Millar are members of
the BTC or the BTEA nor are they parties to the
arbitration proceedings which were brought by Local
I before the BTEA. Since all the parties involved in
this jurisdictional dispute are unable to agree upon a
single method of settlement that binds them all, there
is no voluntary method of settlement.
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.7 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.8
The following factors are relevant in making the
determination of the dispute before us:
i. Collective-bargaining agreement
EIA has a collective-bargaining agreement with
Local 3 to which Millar is bound. The job classifica-
tions and a description of the duties for each indicate
that Local 3 employees are to perform work similar
to that in dispute. Thus, the contract states that
elevator mechanics:
Repair, modernize and install elevators, where
skilled mechanical work (even to close tolerances)
and intricate control circuits are involved. Plan
and execute difficult mechanical and electrical
repairs and installations such as the renewal of
worms and gears, the wiring, connecting and
In view of this determination, we find it necessary to decide whether
there is reasonable cause to believe that Local I violated Sec. 8(b)(4KD)
when it required Local 3. under threat of BTC sanctions, to order Local 3
members off the Plaza Hotel job.
6 United Steelworkers of America. AFL-CIO and its Local No. 4454
(Continental Can Company, Inc), 202 NLRB 652, 654 (1973); International
Brotherhood of Electrical Workers, Local #134 (Movers Association of
Greater Chicago). 205 NLRB 216, 217 (1973).
testing of controllers and other auxiliary electrical
equipment, machine babbitting, thurst [sic] re-
newals, motor and controller removal and
replacement, modernization. Considerable judg-
ment to analyze correctly the source of failure
and proceed with accuracy and dispatch to
completion of repairs, especially in emergency
shut-downs. Work in field, usually without
immediate supervision. Exercise tact and diplo-
macy in meeting customers representatives.
Local I has no collective-bargaining agreement
with the Employer.
We therefore find that this factor favors the award
of the disputed work to employees represented by
Local 3.
2. Employer and area practice
Millar introduced evidence through its president
that it has used Local 3 employees to perform work
such as that which is in dispute at the Plaza Hotel
since 1959 and to perform work on similar jobs
throughout the Metropolitan New York area. It has
not used employees represented by Local 1 for the
work. Thus, Employer's practice favors an award to
the employees represented by Local 3.
The employees represented by Local 3 do the same
work for other employers in the Metropolitan New
York area. Local I members also perform the work
in that area. Thus, both groups of employees perform
a certain amount of this type of work in the same
geographical location. Therefore, the factor of area
practice favors neither group.
3. Relative skills
Millar argues that its employees require years of
on-the-job training in order to understand Millar's
special machinery and equipment. They contend that
the 4 years of mandatory training on the job, which
Local 3 members must attend, better prepares them
to perform the disputed work.
The employees represented by Local I also have
the training and skill to perform the work in dispute.
Thus, both groups of employees possess the ability
to do the work. Therefore, this factor favors neither
group.
7 N. LR.B. v. Radio d& Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
R International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
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ELEVATOR CONSTRUCTORS, LOCAL UNION NO. I
4. Economy and efficiency of operations
The Local 3 members hired by Millar, by virtue of
their training, have developed a high degree of
familiarity with the Employer's equipment, which
enables the Employer to interchange them from job
to job. In addition, these employees perform work for
Millar other than that in dispute, such as signal,
carpentry, and delivery work. As a result, their
versatility permits the Employer to perform both the
disputed and other work tasks with one work force.
There is no evidence, on the other hand, that
employees represented by Local I are capable of or
actually perform such additional work tasks. Thus, it
appears that an award of the work to employees
represented by Local I would require Millar to hire
two work complements, one to do the disputed work
and a second to perform the other work described
above. The contrast in economy and efficiency
achieved by awarding the work to Millar's own
employees is therefore substantial.
We therefore find that this factor favors the award
of the disputed work to employees represented by
Local 3.
5. Employer's job assignment and preference
The Employer has assigned the work in dispute,
and prefers an assignment of such work, to its
employees represented by Local 3. This factor favors
an assignment to the employees represented by Local
3.
6. Joint Board determinations
Although Local I does not contend that the Board
is bound to follow the arbitration decision reached
by the BTEA, it contended at the hearing that the
fact that the BTEA issued an award in Local l's
favor after both Local I and Local 3 agreed to
submit their disputes to it strongly favors an award to
Local I. As found above, that decision was not
binding on Millar, which was not a party thereto.
Nevertheless, since the decision awards the work to
Local I, this factor favors the award of the work to
the employees represented by Local I. However, it is
outweighed by the factors described above which
favor an award to employees represented by Local 3.
Scope of Determination
Millar and EIA contend that the award by the
Board should be broad-based and extensive due to
the fact that Local I has claimed and will continue to
claim such work in the future. Local I contends that
the scope of the award, if any is made, must be
limited to the work in dispute.
The record does not support a finding, required for
the granting of a broad order, that the dispute
promises to recur in a broader geographic area than
the site here involved. Our present determination is
therefore limited to the specific site where the instant
dispute arose.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that Millar's employees who are represent-
ed by Local 3 are entitled to perform the work in
dispute. We reach this conclusion relying on the
collective-bargaining agreement between Millar and
Local 3, the Employer's past practice, preference and
assignment, and economy and efficiency of opera-
tions, all of which favor an award of the disputed
work to the employees represented by Local 3. In
making this determination, we are awarding the work
in question to employees who are represented by
Local 3, but not to that Union or its members. The
present determination is limited to the particular
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
makes the following Determination of Dispute:
I. Employees of Millar Elevator Industries, Inc.,
who are represented by International Brotherhood of
Electrical Workers, AFL-CIO, Local Union No. 3,
are entitled to perform the work of modernizing
elevators 5, 6, 7, and 8 at the Plaza Hotel in New
York City, New York.
2. International Union of Elevator Constructors,
AFL-CIO, Local Union No. 1, is not entitled by
means proscribed by Section 8(b)(4XD) of the Act to
force or require Millar Elevator Industries, Inc., 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, International Union
of Elevator Constructors, AFL-CIO, Local Union
No. 1, shall notify the Regional Director for Region
2, in writing, whether or not it will refrain from
forcing or requiring Millar Elevator Industries, Inc.,
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.
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