Local 25, International Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

May 20, 1965

152 N.L.R.B. 723 (N.L.R.B. 1965)

LOCAL 2 5, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 723
delivered from the warehouse. The dockhands at the warehouse then
load the goods on the Employer's trucks for delivery to the homes of
the various customers.
From the above facts, it is clear that the clerical employees, shipping
and receiving clerks, markers, and wrappers employed at the ware-
house are integral parts of the overall warehouse operation, and are
appropriately included in the unit .3 Accordingly, we find that the
following employees employed at the Birmingham warehouses of the
Employer's Birmingham, Alabama, operation constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act .4
All warehouse employees employed in the Employer's warehouses
located at 930 North 19th Street, Birmingham, Alabama, including
truckdrivers, deliverymen, garage employees, clerical employees, ship-
ping clerks, receiving clerks, markers, and wrappers, but excluding
watchmen, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
3 The Petitioner would also exclude Georgia McKee and John Hall on the ground that
they are both supervisors . From the record it is clear that although both of these
employees work as assistants to admitted supervisors , neither has the authority to hire,
fire, reward , or discipline, etc., or to effectively recommend such action , or to substitute
for the supervisors in their absence In addition , the testimony shows that neither
employee has the authority to responsibly direct other employees in their work , although
they sometimes relay diiections to the employees from the supervisors In these cir-
cumstances we find that they are not supervisors and include them in the unit.
'At the hearing, the Employer filed a motion to dismiss the petition setting forth
several grounds including , among others , the assertions that the unit is inappropriate,
too limited in scope, arbitrarily drawn, and lacking in cohesiveness . This motion was
referred to the Regional Director for consideration and thence to the Board . In view
of our decision herein directing an election , we deny the Employer's motion to dismiss
the petition.
Local 25, International Brotherhood of Electrical Workers, AFL-
CIO and New York Telephone Company and Communications
Workers of America , AFL-CIO, and Its Local 1104. Cases Nos.
29-CD-2 (formerly 2-CD-301), 29-CD-2-2 (formerly 2-CD-
301-2), 29-CD-2-3 (formerly 2-CD-301-3), and 29-CD-4 (for-
merly 2-CD-303). May 20,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following the filing of charges under Sec-
tion 8 (b) (4) (D) of the National Labor Relations Act, as amended. A
hearing was held before Hearing Officer Jordan Ziprin on various dates
152 NLRB No. 75.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between July 21 and August 13,1964. All parties appeared at the hear-
ing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bearing upon the
issues. The rulings of the Hearing Officer made at the hearing are
free from prejudicial error and are hereby affirmed. Briefs were filed
by all the parties and have been duly considered.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Members Brown, Jenkins, and
Fanning].
Upon the entire record in these cases, the Board makes the following
findings :
1. The New York Telephone Company, herein referred to as Telco,
is a New York corporation engaged in the business of providing local
and long distance communications and related services as part of a
nationwide telephone system. As stipulated by the parties, during the
year 1963, which period is representative of its annual operations gen-
erally, Telco had gross revenues in excess of $1 million for communica-
tions services between points within the State of New York and points
in other States. The parties stipulated, and we find, that Telco is an
employer engaged in commerce within the meaning of the Act and it
will effectuate the policies of the Act to assert jurisdiction herein.
2. The parties stipulated, and we find, that Communications Work-
ers of America, AFL-CIO, and its Local 1104, herein jointly referred
to as CWA, and Local 25, International Brotherhood of Electrical
Workers,AFL-CIO, herein referred to as IBEW, are labor organiza-
tions within the meaning of the Act.
3. The dispute.
A. Statement of facts
The instant dispute involves a portion of the work required prior to
the installation of telephones ; i.e., the installation of frames to hold
telephone equipment , the pulling of cables into and within buildings
and the attaching of those cables to interior walls, and the installation
of terminal boxes. This work involves the use of such handtools as
drills, hammers , screw drivers , and staple guns, and such devices as
clamps, staples , screws, nuts , and bolts. The work of connecting or
installing telephone equipment and the handling of live wires is not
in dispute.
Although IBEW has never represented any Telco employees and
Telco and IBEW have never entered into a collective -bargaining con-
tract, the record shows that in 1903, Telco and Local 3, International
LOCAL 25, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 725
Brotherhood of Electrical Workers, executed an agreement concerning
the assignment of certain types of telephone work and that on various
occasions until 1917 they modified and reexecuted such agreement.'
The parties do not dispute that the effect of this agreement was to obli-
gate Telco, on jobs involving new construction or major alteration of
buildings and on which all other work was being performed by employ-
ees belonging to AFL building and construction trades unions, to sub-
contract the work in controversy here to electrical contractors who
would then assign such work to employees represented by the IBEW.
Nor is there any dispute that in assigning the disputed work in Nassau
County and in a portion of Suffolk County until the spring of 1963,
Telco generally acted in conformity with the above agreements. The
instant dispute arose when Telco announced to its supervisory person-
nel that, in the future, such work would be assigned to its own employ-
ees, who are represented for collective-bargaining purposes by CWA.
Telco and CWA allege that during the period between September
1963 and July 1964 IBEW members, stewards, or business agents,
either refused to work or threatened walkouts at 10 different construc-
tion sites in Nassau and Suffolk Counties, when Telco employees rep-
resented by CWA were assigned the disputed work. At each site, the
disputed work was being performed in connection with the construc-
tion of new buildings or major alterations of existing structures. In
addition, it is not disputed that all employees working on these various
projects, except the employees of Telco, were represented by unions
affiliated with the Building Trades department of the AFL-CIO.2
B. Contentions of the parties
While admitting that IBEW members have refused to work on
jobs where Telco employees were performing the disputed work,
IBEW contends that the notice of hearing herein should be quashed
because such refusals to work were spontaneous; that no agents of
IBEW induced these walkouts; and, therefore, it is not responsible for
such conduct. IBEW also denies that any of its agents has threatened
walkouts by IBEW members. IBEW further takes the position that
if the notice of hearing is not quashed, the disputed work should be
performed by electricians employed by independent electrical con-
' Local 3 represented electricians in New York City as well as those in Nassau and
Suffolk County. In 1932 Local 25 was chartered to take over the jurisdiction of Local 3
in Nassau and part of Suffolk County. In 1935 Local 3 notified Telco that it no longer
considered itself bound by the agreement between Local 3 and Telco.
2 On August 21, 1964 , the United States District Court for the Eastern District of
New York , concluding that there was reasonable cause to believe that IBEW had violated
Sections 8(b) (4) (B ) and (D ), issued an injunction restraining IBEW from engaging
in substantially the same conduct as is involved in the instant proceeding . The record
of the hearing in the court proceeding has, by stipulation of all the parties , been in-
corporated into the instant record.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractors. It relies primarily on the various contracts between its pred-
ecessor, Local 3, and Telco, executed in 1903 and thereafter, on the
"Division of Work" guide issued by Telco for the use of its super-
visors,3 and on the admitted practice of Telco prior to 1963 of con-
tracting out the disputed work in Nassau and part of Suffolk County
to contractors employing electricians represented by IBEW.
Telco and CWA contend that the work should be performed by Tel-
co's employees who are represented by CWA. Although conceding
that, prior to 1963, the disputed work was contracted out to electrical
contractors employing members of IBEW, they urge that Telco has
since decided to assign the work to its own employees, that such assign-
ment is more efficient and economical, that the work does not require
the skills of a journeyman electrician, that only in the metropolitan
New York City area is the work given to IBEW members, and that the
assignment is consistent with both the Board certification of CWA and
Telco's collective-bargaining agreement with CWA.
C. Applicability of the Statute
The Board must be satisfied that there is reasonable cause to believe
that Section 8 (b) (4) (D) of the Act was violated before it may proceed
with a determination of dispute pursuant to Section 10(k) of the Act.
The record contains evidence as to a number of incidents in con-
nection with which it is alleged that IBEW engaged in conduct pro-
scribed by Section 8(b) (4) (i) and (ii) (D). Among them are inci-
dents at Sears Roebuck construction projects at Hicksville and Farm-
ingdale. At the hearing, Kromroy, the communication manager of
Sears Roebuck, testified that on May 15, 1964, electricians represented
by IBEW reported sick and left the construction site of a new Sears
retail store in Hicksville when Telco employees appeared for the pur-
pose of installing telephone equipment, that on May 27, 1964, he went
to the IBEW office where he had a conversation with Kraker, the
IBEW business manager, and Costello, his assistant, and that either
Kraker or Costello stated that ". . . if the New York Telephone Com-
pany was found doing any of the work on the job which was `C' work,
that their men would have to leave the job." Kraker denied that either
he or Costello made such a statement.
In 1940 Telco promulgated a document called "Division of Work ," which it provided
for the guidance of its supervisors in determining whether to use outside contractors or
its own employees for specified types of work In this document , which was promulgated
in conformity with the above agreements between Telco and IBEW , work which was to
be subcontracted to independent electrical contractors was designated "C," work which
was to he performed by Telco employees was designated "T," and work which was to be
done by both was designated "J." The Division of Work document was in use at least
as late as 1963. See Communications Workers of America , Local 1104 , AFL-CIO
( Frederick Bond, d/b/a Bond Electric Company ), 146 NLRB 388.
LOCAL 25, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 727
In connection with the same construction project, a representative
of the general contractor, Uman Construction Corp., testified that he
was told early in May 1964 by an IBEW steward named Pete (whose
last name he did not know) that "... telephone men were doing work
that ... the electricians normally did, that ... the electricians would
not be able to work on the job if this continued." Kraker testified that
the IBEW steward on the job was named Peter Truss. Truss testified
that he was the steward on the job, that he did have a conversation with
the general contractor's representative, but denied saying that the men
would not be able to work. As noted above, electricians did subse-
quently leave the job, claiming to be ill.
In December 1963 Telco employees were engaged in installing tele-
phone equipment at a warehouse being constructed for Sears Roebuck
at Farmingdale. The record shows that the IBEW steward on the job
was one Frederick R. Smith. Smith testified that when he saw Telco
employees on the job he telephoned the IBEW office and spoke to Cos-
tello, that Costello told him Telco would be contacted concerning the
matter, and that Costello gave him no further instructions. He testi-
fied further that he then called all 10 electricians on the job together
and told them what had happened, and the electricians decided to walk
off the job. When the electricians communicated this decision to the
electrical contractor's foreman, the latter asked them to remain until
he had an opportunity to straighten the matter out. Subsequently,
the foreman told Smith that the Telco employees were being removed
from the site and the electricians remained at work.
As noted, there is testimony in the record that in connection with
the construction of the Sears Roebuck retail store in Hicksville, Busi-
ness Agent Kraker or his assistant, Costello, and IBEW steward Truss
threatened strike action if IBEW did not receive the disputed work.
While Kraker and Truss denied that such statements were made, the
Board has held that, at this stage of the proceedings, it is not its duty
conclusively to resolve conflicts in testimony .4 IBEW, while not deny-
ing its responsibility for the conduct of Kraker and Costello, contends
that Truss, the union steward, was not acting on its behalf when en-
gaging in the above conduct. In this connection, it relies particularly
on the provision in its bylaws prohibiting stewards from causing a
work stoppage. However, article X, section 2, of the bylaws makes it
the duty of the steward, "To see that no trade or workmen encroach
upon the jurisdiction of this Local Union;" and IBEW has repeatedly
made it clear , and it again asserts in this proceeding, that the disputed
work comes within its jurisdiction.' Moreover, it is not alleged that
4 Local Union No 3, International Brotherhood of Electrical Workers ( Western Elec-
tric Co. ), 141 NLRB 888, 893
5 Ibid.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truss caused a work stoppage, but only that he made threats .6 Under
all the circumstances , we are satisfied that there is reasonable cause to
believe that IBEW threatened Sears and Uman Construction Corp.
with a strike with an object of compelling Telco to assign the disputed
work to IBEW, in violation of Section 8(b) (4) (ii) (D) of the Act.
With respect to the incident occurring at the construction of the
Sears warehouse in Farmingdale, IBEW steward, Smith, admitted
that he spoke to Costello on the telephone about Telco's having assigned
the work to its own employees, that he spoke to the employer and
obtained his permission to call a meeting of electricians, that he called
such a meeting on the job, and that immediately thereafter these elec-
tricians decided to walk off the job and threatened Sears that they
would do so. Smith and Costello denied that Costello instructed Smith
to call a strike or that Smith induced the electricians to strike. How-
ever in view of all the circumstances, including IBEW's claim that it
is entitled to the disputed work and our finding above that there is
reasonable cause to believe that IBEW agents threatened a strike
unless IBEW obtained the disputed work at Hicksville, we are satisfied
that the above sequence of events may reasonably be interpreted as
establishing that Costello, whether explicitly or by a "wink and a nod,"
indicated to Smith that the electricians at the warehouse job should
stop work because the disputed work had been assigned to Telco
employees , and that Smith transmitted these instructions to the elec-
tricians on the job, thus inducing them to engage in a strike. Accord-
ingly, we conclude that there is reasonable cause to believe that IBEW
also violated Section 8(b) (4) (i) (D).7
D. Merits of the Dispute
IBEW claims, and Telco admits, that since 1903, in the geographic
area covered by this dispute, when a new building was being con-
structed or major alterations were being made on an existing building
and all other employees on the project were members of AFL or AFL-
CIO Building Trades Union, the work in controversy had been per-
formed by IBEW members employed by electrical contractors. This
company practice is further evidenced by the contracts dating back to
1903 between IBEW and Telco and the Division of Work guide which
Telco issued to its supervisors. As the Company's past practice is one
of the factors which we consider in making a determination under
Section 10 (k),8 we find that in the instant case such practice favors the
B Id. at footnote 4.
7 In view of our findings herein, we deem it unnecessary to consider whether, on the
basis of the evidence of additional instances of work stoppages and threats of work
stoppages contained in the record , there is also reasonable cause to believe that IBEW
has further violated Section 8(b) (4) (D ) of the Act.
81nternational Association of Machinists Lodge No. 1743 (J. A. Jones Construction
Company ), 135 NLRB 1402.
LOCAL 2 5, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 729
contentions of IBEW. In weighing the significance of this factor,
however, we note uncontradicted testimony establishing that in 1962
90 percent of the placing of terminal boxes and pulling of cable in Nas-
sau County was, for one reason or another, performed by Telco employ-
ees rather than by employees of electrical contractors.9 We also note
that elsewhere in New York State (except in the metropolitan New
York City area) the disputed work is also performed by Telco employ-
ees represented by CWA.io
The record further establishes that the use of independent electrical
contractors to perform the disputed work requires the presence of a
Telco foreman at all times, while use of Telco employees requires a
foreman's presence only to get the work started. In addition, because
the electrical contractors do not always have men available on short
notice, if the work is being performed by electrical contractors, there
is sometimes a delay of several hours or even an entire day before work
can be started. Also, as noted earlier, the disputed work involves use
of the simplest handtools and one can be trained to perform the work
in a short time. Thus, the disputed work does not require the high
skills of a journeyman electrician, and employees of Telco, as well as
electricians, are qualified to perform the work. For all these reasons,
we find that assignment of the disputed work to Telco employees results
in greater efficiency and economy than would the utilization of electri-
cians for that purpose.
In 1961 the Board certified CWA as collective-bargaining represen-
tative of all Telco's plant department employees. The current collec-
tive-bargaining agreement between these parties covers all such
employees, including installers and linemen who have been assigned
the disputed work by Telco. IBEW has no agreement with Telco but
does have an agreement with the Nassau and Suffolk Chapter of the
National Electrical Contractors Association (herein referred to as
NECA), which is silent concerning the type of work in dispute herein.
e Thus, under its agreement with IBEW , and under the "Division of Work" guide,
Telco was not obligated to assign the disputed work to electricians employed by electri-
cal contractors where there were nonunion employees on the project or where only minor
alterations of a building were involved Further , Telco has assigned the work to its
own employees where the construction work was being done on county-owned buildings.
See Bond Electric, supra, footnote 3. Finally , the record establishes that Telco em-
ployees were often assigned the disputed work where there were no electricians present
on the constructionsite or when no protest was received by Telco from IBEW. The
placing of terminal boxes and the pulling of cable is a portion of the work in dispute
in this proceeding.
"We note further in this connection that Telco 's past practice of awarding certain
work to independent contractors who employ IBEW members constituted a narrow
exception to its general practice of awarding work to its own employees , now represented
by CWA. Moreover , the factors which governed the award to employees represented by
IBEW related not to the nature of the work being performed or other factors normally
given weight by the Board, but to the general character of the construction involved and
the representation of the employees performing other aspects of such construction work.
In these circumstances , we cannot agree with our dissenting colleague that this practice
is entitled to virtually controlling weight
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, therefore, that Telco's assignment of the work is consistent
with the Board certification of CWA as representative of Telco's
employees and with Telco's collective-bargaining agreement with
CWA. We further find that such assignment is not inconsistent with
the NECA-IBEW contract.
Weighing the factors relied upon by Telco and CWA on the one
hand against those cited by IBEIV on the other, we conclude that the
former outweigh the latter.11 As Telco uses its own employees to per-
form such work throughout New York State (with the exception of
the New York City metropolitan area), as Telco has now assigned
such work to its own employees in the area covered by the instant pro-
ceeding, as the performance of such work by Telco employees is more
efficient and economical than utilization of electricians, as Telco
employees are sufficiently skilled to perform the work, and as the
assignment is consistent with the Board certification and with the terms
of the collective-bargaining agreement between Telco and CWA, we
shall determine the dispute in favor of Telco employees represented by
CWA. Our present determination is limited to the particular contro-
versy which gave rise to this proceeding.12 In making this determina-
n Our dissenting colleague would assign the disputed work to employees represented
by IBEW In part because a contrary assignment would result in a loss of jobs to these
employees. However, the Board has applied the "loss of jobs" test only where new
work has been introduced into a plant either because of changes in technology (Phila-
delphia Inquirer , Division of Triangle Publications , 142 NLRB 36; The Denver Publish-
ing Company, 144 NLRB 1408), or changes in the employer' s method of operations
(United States Steel Corporation , 150 NLRB 88; National Publishing Division , McCall
Corporation, 150 NLRB 3S8 , Peabody Coal, 151 NLRB 35S). Here any loss of jobs
would be attributable only to the fact that Telco had reassigned the same work from
employees represented by IBEW to employees represented by CWA. If the "loss of jobs"
test were applied in this context, it is apparent that an employer would , be virtually
precluded from changing a work assignment.
The dissent , citing Northern Metal Company, 137 NLRB 1451, and Capital Electrotype
Company, Inc, 137 NLRB 1467, would also rely on the fact that CWA had "participated
in the distribution of work under the Division of Work plan under wlilah ' IB16W'. cla(ms
the instant work " But in those cases , it was the respondent union , which in the past
had consented to the employer 's assignment of the disputed work to employees represented
by another union , which was alone seeking the change In that context , it is valid to
regard the respondent union's acquiescence as a factor which militates against over-
turning the employer 's assignment Here , however, after CWA's participation in the
distribution of work under the Division of Work plan , Telco reassigned the disputed
work to employees represented by CWA. In these circumstances , we do not believe that
CWA's earlier acquiescence in the assignment of work to employees represented by
IBEW can preclude its or our reappraisal of the changed situation brought about by
Telco's reassignment of the work to a different group of employees.
za Our determination herein covers the assignment of the work in issue in 'the, area
comprising Nassau County and part of Suffolk County , which is the area served by Telco
where the geographical jurisdiction of Communications Workers of America, Local 1104,
AFL-CIO, and Local 25, International Brotherhood of Electrical Workers, AFL-CIO,
coincide. Communications Workers of America, Local 1104 (Frederick Bond, d/b/a
Bond Electric Company ), 146 NLRB 388, footnote 5; Local Union No. 3, International
Brotherhood of Electrical Workers ( Western Electric Company ), 141 NLRB 888, foot-
note 12 . While we have based our findings that there is reasonable cause to believe
that IBEW violated Section 8 ( b) (4) (D) on incidents occurring at two construction sites,
one in Hicksville and the other in Farmingdale , New York, as noted, the record establishes
that the scope of the instant dispute extends throughout Nassau and part of Suffolk
counties.
LOCAL 25, INT'L BROTHERHOOD OR ELECTRICAL, ETC. 731
tion, we are awarding the controverted work to Telco employees repre-
sented by CWA, and not to CWA or its members.
Accordingly, we find that IBEW was not, and is not, entitled by
means proscribed by Section 8 (b) (4) (D) of the Act to force or require
Telco to assign the disputed work to its members, rather than to Telco
employees represented by CWA.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing and the entire record in the case,
the Board makes the following Determination of Dispute pursuant to
Section 10 (k) of the Act :
A. Employees of the New York Telephone Company, currently rep-
resented by Communications Workers of America, AFL-CIO, are
entitled to perform the following work :
(1) Installing and fastening devices and structures designed to hold
and support telephone equipment.
(2) Pulling telephone cables and wires into and within buildings
and structures, and attaching them to interior walls.
(3) Installing and fastening terminal boxes where cables are con-
nected on to interior walls.
B. Local 25, International Brotherhood of Electrical Workers,
AFL-CIO, is not entitled by means proscribed by Section 8 (b) (4) (D)
of the Act to force or require the New York Telephone Company to
assign the above-described work to electricians who are currently rep-
resented by Local 25, International Brotherhood of Electrical Work-
ers, AFL-CIO.
C. Within 10 days from the date of this Decision and Determination
of Dispute, Local 25, International Brotherhood of Electrical Workers,
AFL-CIO, shall notify the Regional Director for Region 29, in writ-
ing, whether or not it will refrain from forcing or requiring New York
Telephone Company to assign the work in dispute to its members,
rather than to employees of New York Telephone Company repre-
sented by Communications Workers of America, AFL-CIO.
MEMBER FANNING, dissenting :
Accepting the determination of my colleagues that the instant case
should be treated as a jurisdictional dispute within the meaning of
Sections 10(k) and 8(b) (4) (D) of the Act, I would award the work
in dispute to electricians represented by the IBEW, based principally
upon Telco's practice of, more than half a century in awarding such
work to them in the metropolitan New York City area. This prac-
tice, evidenced by the Division of Work agreement 13 and its hereto-
13 A more detailed history and description of the original agreement and the sub-
sequent Division of Work document is found at footnote 3 of the Board ' s decision in
Bond Electric, supra.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore observance by all parties.'is recognized by the majority as favor-
ing the IBEW. In my opinion, however, it is entitled to greater
-weight than that accorded it by the majority.
In its discussion of this factor, the majority mentions only inci-
dentally that Telco's practice of subcontracting the disputed work to
electrical contractors whose employees are represented by the IBEW,
in accordance with the terms of the Division of Work document, still
continues in the rest of the metropolitan New York City area, includ-
ing part of Suffolk County, and that, for 60 years prior to 1963, that
practice was in effect in the rest of Suffolk County and in Nassau
County as well. When Telco's practice is viewed in this more com-
plete context, the strength of this factor favoring the IBEW appears
more readily than it does from the majority's treatment. In this
regard, it is worthy of note that in both Bond and Western, Electric,
supra, involving the same or related parties, the Board relied on the
specific practice found in each case to support CWA. Here, as admit-
ted by the majority and demonstrated in more detail herein, the
relevant practice favors the IBEW.
Since we are concerned here only with the particular area of Nas-
sau and Suffolk Counties where the jurisdiction of the two Unions
coincide'14 I think that the majority's reliance on the practice "else-
where in New York State," in an effort to detract from the signifi-
cance of the practice standard in the former area, is misplaced. Simi-
larly, its attempt to rely on some contrary practice in 1962, in order
to mitigate the importance of this factor, must fail. The majority
states that the 1962 departures from the usual practice favoring the
IBEW took place "for one reason or another." But an examination
of the reasons for the departures listed in footnote 9, supra, reveals
that the work involved occurred under conditions which did not call
for subcontracting of the work under the terms of the Division of
Work document. Those instances are thus irrelevant to a discussion
of the practice prevailing under -conditions which did require sub-
contracting. Thus, under this document, the disputed work is to be
subcontracted to IBEW employers only when performed on new
construction or major alterations, and only when all other employees
on the constructionsite were members of Building Trades unions. In
the instant case, those conditions were met, and the practice relied
upon by the IBEW is that occurring only under such conditions.
How, then, does work performed under different conditions and call-
ing for a different method of work detract from that specific prac-
tice? And, with respect to the work on county-owned buildings, the
Board in Bond Electric, supra, held that a separate practice, which
favored CWA, obtained on such buildings, and that only the prac-
tice on those buildings was relevant. If the same strict standards of
14 See footnote 10, supra.
LOCAL 2 5, INT'L BROTHERHOOD OF ELECTRICAL, ETC.' 733
relevance and specificity used in Bond are applied here, little remains
of the majority's effort to minimize the weight of the practice stand-
ard favoring the IBEW.
In view of the fact that the parties agree that the Division of Work
agreement "obligated" Telco to subcontract the disputed work when-
ever the above conditions prevailed, and the further fact that no one
disputes that these conditions did prevail at the sites here in ques-
tion, I would, under the circumstances of this case, attach controlling
significance to the agreement and the 60-year practice thereunder.
Reliance upon this method of settling or avoiding disputes would be
in keeping with the public policy of promoting industrial stability
by encouraging private parties to resolve such recurring matters of
controversy.15 The importance of the standard of the Employer's
past practice in general can be seen from the fact that the Board has
attached significant weight to it in more cases under Section 10(k)
than to any other single standard.16 Nor do I think it is outweighed
here by any opposing considerations of Telco's assignment, economy
of operations, or CWA's contract and certification. Particularly is
this so since CWA, during the years in which it has represented
employees of Telco, has participated in the distribution of work
under the Division of Work plan under which the IBEW claims the
instant work. See in this regard Local 1091, International Longshore-
men's Association (Northern Metal Company), 137 NLRB 1451, 1456-
1457; Local 28, International Stereotypers' and Electrotypers' Union
of North America (Capital Electrotype Company, Inc.), 137 NLRB
1467, 1472.17
The IBEW's claim to the disputed work is also supported by the
"job loss" factor, which we have utilized increasingly in recent cases."'
251 do not suggest that having observed the provisions of the Division of Work agree-
ment for many years Telco is therefore forever bound to its terms . It is, of course,
free at any time to work out desired changes with the Union involved . However, it
would not appear to foster the policies of the Act to permit Telco so abruptly to dis-
regard the agreement which previously had distributed the work to the apparent satis-
faction of all parties
18 In view of our considerable experience with the various factors outlined in J. A.
Jones, supra, and subsequent cases, I think the time has come when it would be
both appropriate and useful either to establish a standard of values for these factors,
to be utilized in future proceedings, or, at the least , to list certain factors to wbich we
will attach significant weight whenever they are present in a particular case See
Cohen , The NLRB and Section 10 (k): A Study of the Reluctant Dragon, 14 Labor Law
Journal , 905, 917-918 ( 1963).
17 Unlike my colleagues , I would not restrict our reliance upon a union 's participation
or acquiescence in a prior practice of work assignments to those instances in which that
union is the respondent in the proceeding before us A union 's acquiescence in a former
practice which is adverse to its interest is relevant , whatever position the union may
occupy in that proceeding
18 Philadelphia Typographical Union, Local No. 2 (Philadelphia Inquirer, Division of
Triangle Publications ), 142 NLRB 36, 42-43 ; Denver Photo-Engravers' Union No. 18,
etc. (The Denver Publishing Company), 144 NLRB 1408, 1412-1413 , International Long-
shoicrnen 's & Warehousemen 's Union, et al. (United States Steel Corporation ), 150 NLRB
SS, ltionien 's Bindery Union, Local No 42, International Brotherhood of Bookbinders
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As Telco's sudden departure from its admitted practice will have the
necessary effect of depriving employees represented by the IBEW of
work which they previously performed, "conceivably" ',,,leading to
the elimination of some of their jobs, and as no jobs can be lost to
CWA if Telco merely continues to contract out the disputed work, I
would add this consideration to that of Telco's past practice as sup-
port for the IBEW's claim to the disputed work.
Finally, I think that the matter of the contractual claims of the
respective unions needs to be placed in clearer perspective. Although
Telco's collective-bargaining agreement with CWA covers the work
in question, it is worthy of note that this agreement contains a clause
specifically permitting Telco to contract out work which it has "cus-
tomarily" contracted out, which would include the disputed work.
Further, IBEW has a contract with NECA, whose contractor-
members have "customarily" performed such work under subcon-
tracts from Telco, in accordance with the Division of Work agree-
ment.20 Therefore, although the IBEW`T-NECA contract may be
"silent" with respect to the disputed work, it cannot be denied that
that contract has in fact been applied to electricians performing this
very work in the past. Under these circumstances, CWA's contract
with Telco is, at best, ambiguous with respect to the disputed work.
When it is considered in conjunction with the IBEW-NECA contract
and the prior practice of subcontracting the work to NECA contrac-
tors, I would conclude that this factor actually favors neither party.
For the reasons stated above, I would award the work in question
to electricians who are employed by independent electrical contrac-
tors and represented by the IBEW.
(National Publishing Division, McCall Corporation), 150 NLRB 388 , United Mine
Workers of America, et al. (Peabody Coal Company), 151 NLRB 355.
If, as acknowledged by the majority, an adverse effect on employment is a proper con-
sideration when caused by such factors as new work, technological advances , and cus-
tomer complaints , I fail to see why it is not equally proper when brought about by the
very reassignment of work which gives rise to the dispute before us. Indeed, the "job
loss" consideration seems even more valid in the latter context , when the employer's
reassignment may be motivated in large part by its desire to take advantage of a cheaper
wage rate. In any event, the instant case is not as dissimilar to those just cited as the
majority would have it appear , for, although the nature of the disputed work is un-
changed , Telco's method of having it performed has changed substantially ; i e , from
subcontracting the work to using its own employees . And, it is this change in the
method of performance which could result in a loss of jobs to employees of outside elec-
trical contractors.
"Denver Publishing Company, supra, footnote 18.
2°The significance of subcontracting clauses in these proceedings has recently been
recognized in Oil, Chemical and Atomic Workers International Union, etc. (Merck d Co.,
Inc ), 151 NLRB 374 I can understand the position of the majority in that case
where, in awarding the disputed work to Merck 's plant employees represented by OCAW,
they relied upon the contract between Merck and the OCAW which prohibited the sub-
contracting of work "normally performed" by OCAW, and upon Merck 's practice of not
subcontracting the disputed work. Here, however, as noted above, the Telco-CWA con-
tract permits Telco to contract out work which it had "customarily" subcontracted
under its past practice . • Thus, under the reasoning in Merck and the contrary con-
tractual conditions present here , I should think that CWA's contract would be entitled
to little if any weight.