IBEW, Local Union No. 3

National Labor Relations Board - Board Decisions

Mar 23, 1973

202 N.L.R.B. 722 (N.L.R.B. 1973)

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO and Madison
Square Garden Center, Inc. and Theatrical Protec-
tive Union No. I of International Alliance of
Theatrical Stage Employees and Motion Picture
Machine Operators of the United States and
Canada. Case 2-CD-431
March 23, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 22, 1973, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , Local Union No.
3, International Brotherhood of Electrical Workers,
AFL-CIO, New York, New York , its officers , agents,
and representatives , shall take the action set forth in
the said recommended Order.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge. This proceed-
ing, with all the parties represented, was heard on
December 6, 1972, in New York City, New York, on the
complaint of the General Counsel issued on October 26,
1972,1 and the answer of Local Union No 3, International
Brotherhood of Electrical Workers, AFL-CIO, herein
i The complaint is based on a charge filed on August 25, 1971, a copy of
which was duly served on the Respondent by registered mail on the same
day
2 Sec 8(b)(4), insofar as relevant, makes it an unfair labor practice for a
labor organization or its agents
(u) to threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where an object
thereof is
called the Respondent or Local 3. Both pleadings were
subsequently amended at the hearing. In issue is the
question whether the Respondent, in violation of Section
8(b)(4)(iii)(D) of the National Labor Relations Act, as
amended,2 threatened, coerced, or restrained Madison
Square Garden Center, Inc., herein called the Garden or
the Company, to compel the assignment of certain
disputed work to employees who were members of, or were
represented by, the Respondent rather than to employees
who were members of, or were represented by, Theatrical
Protective Union No. I of International Alliance of
Theatrical Stage Employees and Motion Picture Machine
Operators of the United States and Canada, herein called
Local 1. At the close of the hearing, the parties waived oral
argument. Thereafter, only the Respondent filed a brief in
support of its position.
Upon the entire record, including the record in the
Section 10(k) proceeding discussed below, and from my
observation of the demeanor of the witnesses, and with due
consideration being given to the arguments advanced by
the parties, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Garden, a Michigan corporation, with its principal
office in New York City, New York, is engaged at that
location in the operation of entertainment facilities for the
performance of theatrical shows, sports, and other events.
From the conduct of these operations the Company
annually derives gross revenue in excess of $1 million. In
the course and conduct of its business, it also annually
purchases equipment and supplies valued in excess of
$50,000 directly from firms located outside the State.
It is admitted, and I find, that the Garden is a person
and an employer engaged in commerce and in an industry
affecting commerce within the meaning of Section 2(1), (2),
(6), and (7) and Section 8(b)(4) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is clear that the Respondent and Local 1 are labor
organizations within the meaning of Section 2 (5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; The Question Presented
The instant case arises out of a jurisdictional dispute
between the Respondent, Local 3, and Local 1 over the
performance of certain work at the Garden. Following a
hearing pursuant to Section 10(k) of the Act,3 the Board on
(D) forcing or requiring any employer to assign particular work to
employees in a particular labor organization or in a particular trade,
craft, or class, rather than to employees in another labor organization
or in another trade, craft, or class, unless such employer is failing to
conform to an order or certification of the Board determining the
bargaining representative for employees performing such work
3 Sec 10(k) provides, in relevant part, that "[w lhenever it is charged that
any person has engaged in an unfair labor practice within the meaning of
paragraph (4)(D) of section 8(b), the Board is empowered and directed to
202 NLRB No. 106
IBEW , LOCAL UNION NO 3 723
July 24, 1972, issued its Decision and Determination of
Dispute,4 in which it awarded the disputed works to
employees represented by Local I and held that the
Respondent, Local 3, was "not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or require
the [Garden] to assign the above work to its members or
employees it represents." The Determination of Dispute
further provided that "[w]ithin 10 days of this Decision
and Determination of Dispute . . . [Local 3] shall notify
the Regional Director for Region 2, in writing, whether it
will refrain from forcing or requiring the [Garden], by
means proscribed by Section 8(b)(4)(D), to award the work
in dispute to its members rather than to employees
represented by Local 1."
Thereafter, on September 5, 1972, the Garden filed with
the Board a request for clarification of the Decision and
Determination of Dispute concerning certain sound
equipment work. On September 22, 1972, the Board issued
an Order granting the motion for clarification in which it
specifically refused to construe its Decision and Determi-
nation of Dispute as awarding the work in question to
Local 3 and expressly awarded such work to Local 1.6 On
October 18, 1972, the Board also denied the Respondent's
related motion made on September 19, 1972, to reopen the
hearing to receive evidence with respect to the subject
matter of Garden's above-mentioned clarification motion.
The Respondent concededly refuses to serve upon the
Regional Director the notice required by the Determina-
tion of Dispute that it will refrain from resorting to means
prohibited by Section 8(b)(4)(D) to force the Respondent
to assign the disputed work to its members. It justifies its
refusal on the ground that this procedure is necessary in
order to preserve its position to challenge the validity of the
jurisdictional award before the Board and the courts.
Although no fault can be found with the Respondent's
procedure, its further argument that the Board may not
rely on the Respondent's noncompliance to establish a
violation of Section 8(b)(4)(D) is, however, a nonsequitur.
Actually, it is not the failure to serve the notice of intention
hear and determine the dispute out of which such unfair labor practice shall
have arisen
1 198 NLRB No 61
5 The particular work awarded to Local I and described in the
Determination of Dispute consists of
handling the installation, operation, and maintenance of portable
lighting equipment of any type or intensity brought in from outside the
Garden to supplement the Garden equipment, hung off the stage to
illuminate the stage , 7 and the installation, operation, and maintenance
of extra portable sound and projection equipment for theatrical
productions and theatrical elements of semitheatrical productions at
the Employer's jobsite at Madison Square Garden, 4 Pennsylvania
Plaza, New York, New York
7 For purposes of this Determination of Dispute, the area of
performance constitutes the stage and such area is not limited by
the proscenium arch
6 The clarification order stated
the Board is unwilling to hold that its Decision and Determina-
tion of Dispute may be construed as awarding the work of installing,
adjusting, moving during the performance and removing microphones
supplied from the outside for rock and roll concerts, where such
equipment is associated with the musical instruments on the stage, to
employees represented by Local 3
IT is ORDERED that employees represented by [Local I ] are entitled
to perform the work of installing, placing, adjusting, moving during the
performance and removing microphones supplied from the outside for
rock and roll concerts when such sound equipment is associated with
to comply that is alleged to be an unfair labor practice, but,
rather, it is the Respondent's alleged prior coercive
conduct to compel the assignment of the disputed work to
the employees it represented that constitutes the violation.?
Compliance with the Board's determination results in a
dismissal of the charges.8
Since it is settled law that the Administrative Law Judge
is bound by the Board's award, the Respondent was not
permitted to relitigate the question of the assignment of the
disputed work or the validity of the Board's award, as
subsequently clarified. Accordingly, evidence not shown to
have been unavailable during the Section 10(k) proceeding,
which the Respondent offered to prove that it was entitled
to that work and that the award was erroneous, was
rejected. Consistent with these rulings, I quashed, on the
Garden's motion, a subpoena duces tecum which the
Respondent had served on it .9 The only issue thus left to be
resolved in this case is whether the Respondent threatened,
coerced, or restrained the Garden to compel an assignment
of the disputed work to employees represented by it rather
than to employees represented by Local 1. We turn to the
evidence.
B. The Evidence
The uncontroverted and credited testimony given by
Richard Donopria, the Garden's building superintendent,
and by Robert Harter, the Garden's vice president of
operations and Donopria's superior, establishes the follow-
ing:
A show described as the Miss Black America Beauty
Pageant was scheduled to be held in the Garden on August
27, 1971. As the show was to be televised, additional
lighting fixtures had to be installed the day before.
Therefore, on August 25, Donopria telephoned James
O'Hara, Local 3's assistant business manager; apprised
him of the need for the installation of the extra lighting;
and proposed that this work be shared between Local 3
the musical equipment on stage
' The Respondent does not contend that the Garden' s refusal to assign
the disputed work to employees represented by it was in violation of a
Board Order or certification of bargaining representative If the Garden's
refusal were in violation of a Board Order or certification, Sec 8(b)(4)(D),
by its terms, wquld not illegalize the Respondent 's alleged conduct
8 Sec 102 91 of the Board's Rules and Regulations
9 I also rejected an unfair labor practice charge (Case 2-CD-449) filed
on October 18, 1972, by the Garden against Local I alleging a violation of
Sec 8(b)(4)(i)(u)(D), the Acting Regional Director's refusal to issue a notice
of hearing under Sec 10(k) of the Act or to issue a complaint, and the
General Counsel's rejection of Local 3's appeal from the Acting Regional
Director's ruling on the ground that Local 3 lacked standing to effect the
appeal These documents were offered by the Respondent to show that the
Regional Director misinterpreted the Board's so-called ambiguous and
vague award involved in the present case and that the Respondent was
thereby denied due process I excluded the proffered documents on the
ground that they did not relate to the issue before me and that the General
Counsel had unreviewable authority and discretion to issue or refuse to
issue a complaint in Case 2-CD-449 In addition. I rejected a music critic's
review of a performance of the Bejart Ballet which appeared in the New
York Times on November 12, 1972, and which the Respondetit offered to
demonstrate that the Acting Regional Director erred in interpreting the
Board's award as granting Local I the work involved in the charge in Case
2-CD-449 I ruled that the review did not relate to an issue before me and
was hearsay in nature
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Local 1 on "a 50-50 basis," as had been done in the
past.10 O'Hara, however, refused to agree to this arrange-
ment stating that , unless Local 3 did all the work, there
would be no show . In response to Donopria 's question,
O'Hara noted that this was a firm decision. The conversa-
tion ended with O'Hara answering Donopria's further
inquiry that he would remain in his office for an hour or so.
The same morning Donopria reported his conversation
with O'Hara to Harter, who thereupon telephoned O'Hara.
Voicing dismay at O'Hara's attitude and his refusal to
adhere to the 50-50 arrangement, Harter reminded him
that this was the practice in similar past situations. O'Hara
replied that he had gone along with this arrangement with
respect to two previous shows, but he was unhappy with
the result and that consequently he would not accept the
work on a 50-50 basis O'Hara then informed Harter that
the show would not go on unless Local 3 received 100
percent of the work. When O'Hara indicated that he would
not recede from his position, Harter declared that the
Garden would do everything in its power to put the show
on. This evoked O'Hara's response that he would do
everything in his power to see that the show did not take
place. Following this conversation, the charge in this case
was filed As indicated in the Board's Decision and
Determination of Dispute, the Regional Director secured
the same day (August 25, 1971) a temporary restraining
order from the United District Court for the Southern
District of New York and the Black American Beauty
Pageant was held as scheduled with the disputed lighting
work being performed in accordance with the 50-50
arrangement.
In view of the foregoing, I find, contrary to the
Respondent's contention, that the Respondent threatened,
coerced, and restrained the Garden with an object of
forcing the Garden to assign the work in dispute to
employees represented by it rather than to employees
represented by Local 1. Such conduct clearly contravened
the prohibitions of Section 8(b)(4)(ii)(D) of the Act.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and take certain affirmative action, including the
posting of an appropriate notice to members and employ-
ees, designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Garden is an employer engaged in commerce or
in an industry affecting commerce within the meaning of
Section 2(6) and (7) and Section 8(b)(4) of the Act.
2. The Respondent and Local I are labor organizations
within the meaning of Section 2(5) of the Act.
10 In its Decision and Determination of Dispute, the Board noted that
the performance of the work in question had long been the subject of
dispute between the Unions with the result than an arrangement was
reached whereby the Garden would assign the work to the Unions on a
"50-50 basis" with the understanding that no precedent would thereby be
established
3. The Respondent has continually refused to notify
the Regional Director for Region 2, in writing , as required
in the Board's Decision and Determination of Dispute (198
NLRB No. 61) whether it will refrain from forcing or
requiring the Garden, by means proscribed by Section
8(b)(4)(D), to award the work described below to its
members rather than to employees represented by Local I
to whom the Board in 10(k ) proceedings had assigned the
work. Specifically , the work consists of:
(1) Handling the installation , operation , and mainte-
nance of portable lighting equipment of any type or
intensity brought in from outside the Garden to
supplement the Garden equipment , hung off the stage
to illuminate the stage, and the installation , operation,
and maintenance of extra portable sound and projec-
tion equipment for theatrical productions and theatri-
cal elements of semitheatrical productions at the
Employer's jobsite at Madison Square Garden, 4
Pennsylvania Plaza, New York, New York. (2) Install-
ing, placing , adjusting , moving during the performance
and removing microphones supplied from the outside
for rock and roll concerts when such sound equipment
is associated with the musical equipment on stage.
4. By threatening, coercing, and restraining the Garden
with an object of forcing or requiring the Garden to assign
the above-described work to employees represented by
Local 3 rather than to employees represented by Local 1,
although the Garden was not failing to conform to an
order or certification of the Board determining the
bargaining representative for employees performing such
work, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(ii)(D) of
the Act.
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, as amended, I hereby issue the following
recommended:
ORDER"
The Respondent , Local Union No. 3, International
Brotherhood of Electrical Workers, AFL-CIO, its officers,
representatives, agents, successors, and assigns , shall:
1. Cease and desist from threatening , coercing, or
restraining Madison Square Garden Center , Inc., where an
object thereof is to force or require said Company to assign
the work described below to employees represented by the
Respondent rather than to employees represented by
Theatrical Protective Union No. I of International
Alliance of Theatrical Stage Employees and Motion
Picture Machine Operators of the United States and
Canada, unless Madison Square Garden Center , Inc., is
failing to conform to an order or certification of the Board
ii In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
IBEW , LOCAL UNION NO 3 725
determining the bargaining representative for employees
performing such work.
The work involved consists of:
(1) Handling the installation, operation, and mainte-
nance of portable lighting equipment of any type or
intensity brought in from outside the Garden to
supplement the Garden equipment, hung off the stage
to illuminate the stage, and the installation, operation,
and maintenance of extra portable sound and projec-
tion equipment for theatrical productions and theatri-
cal elements of semitheatrical productions at the
Employer's jobsite at Madison Square Garden, 4
Pennsylvania Plaza, New York, New York. (2) Install-
ing, placing, adjusting, moving during the performance
and removing microphones supplied from the outside
for rock and roll concerts when such sound equipment
is associated with the musical equipment on stage.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business office, hiring halls, and meeting
places, copies of the attached notice marked "Appen-
dix." 12 Copies of said notice, on forms provided by the
Regional Director for Region 2, after being duly signed by
the Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for Region 2, signed
copies of the attached notice for posting by Madison
Square Garden Center, Inc., at its facilities at the Garden
in New York City, New York, if the Company is willing to
do so.
(c) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Square Garden Center, Inc., where an object thereof is
to force or require that Company to assign the work
described below to employees represented by us rather
than to employees represented by Theatrical Protective
Union No. 1 of International Alliance of Theatrical
Stage Employees and Motion Picture Machine Opera-
tors of the United States and Canada, unless Madison
Square Garden Center, Inc., is failing to conform to an
order or certification of the Board determining the
bargaining representative for employees performing
such work.
The work involved consists of:
(1) Handling the installation, operation, and
maintenance of portable lighting equipment of
any type or intensity brought in from outside the
Garden to supplement the Garden equipment,
hung off the stage to illuminate the stage, and the
installation, operation, and maintenance of extra
portable sound and projection equipment for
theatrical productions and theatrical elements of
semitheatrical productions at the Employer's
jobsite at Madison Square Garden, 4 Pennsylva-
nia Plaza, New York, New York. (2) Installing,
placing, adjusting, moving during the perform-
ance and removing microphones supplied from
the outside for rock and roll concerts when such
sound equipment is associated with the musical
equipment on stage.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten , coerce, or restrain Madison
Dated By
LOCAL UNION No. 3,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 36th Floor, Federal
Building, 26 Federal Plaza, New York, New York 10007,
Telephone 212-264-0330.