Local 25, Int'l Brotherhood, Etc.

National Labor Relations Board - Board Decisions

May 17, 1965

152 N.L.R.B. 671 (N.L.R.B. 1965)

LOCAL 2 5, INT'L BROTHERHOOD, ETC. 671
The multiemployer bargaining unit heretofore found by the Board to be appro-
priate was described in the Decision and Direction of Election as comprising the
production and maintenance employees of all members of Sewanee , but in view of
the fact that Sewanee in its corporate form has dissolved since the UMW won the
election, the multiemployer unit is now more accurately described as comprising the
production and maintenance employees of those coal mining operators who were
formerly members of Sewanee . It is accordingly recommended that the Board certify
the UMW as the collective -bargaining representative of all the production and main-
tenance employees of coal mining operators who were formerly members of Sewanee,
including those who are not now operating but who resume the business of operating
coal mines at the end of the strike or before the conclusion of the strike.
Local 25, International Brotherhood of Electrical Workers, AFL-
CIO and Emmett Electric Company, Inc. and Industrial Work-
ers of Allied Trades, Local 199, affiliated with the National
Federation of Independent Unions; United Construction Con-
tractors Association , Inc.; D -Lion Construction Co., Inc. , Parties
in Interest . Case No. 29-CD-8 (formerly 2-CD-316). May 17,
1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Emmett Elec-
tric Company, Inc., herein called Emmett, alleging a violation of Sec-
tion 8(b) (4) (D) of the Act by Local 25, International Brotherhood
of Electrical Workers, AFL-CIO, herein called Local 25. A hearing
was held before Hearing Officer Jacques Schurre on November 18,
1964, at which all parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence bear-
ing upon the issues. The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby affirmed.
Thereafter, briefs were filed by Emmett, Local 25, and Industrial
Workers of Allied Trades, Local 199, affiliated with the National Fed-
eration of Independent Unions, herein called Local 199, which the
Board has duly considered.
Upon the entire record in the case, the National Labor Relations
Board 1 makes the following findings :
1. The business of the Employer
Emmett is an electrical contractor with its place of business in Levit-
town, Long Island, New York. In July 1964, Emmett was engaged as
an electrical subcontractor in the construction of the East End Syna-
gogue, Long Beach, Long Island, New York, where the alleged dispute
occurred.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated Its
powers in connection with this case to a three -member panel [ Chairman McCulloch and
Members Fanning and Brown].
152 NLRB No. 53.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emmett is also a member of United Construction Contractors Asso-
ciation, Inc., herein called Association , an organization which bargains
and executes labor agreements on a multi employer basis on behalf of
its members . One of the Association 's members is Al and Jack Picoult
d/b/a Jack Picoult , a New Jersey corporation with its office and place
of business in Fort Lee, New Jersey . During the past 12 months,
Picoult performed $700,000 worth of business outside the State of
New Jersey . In addition , Picoult has received materials valued in
excess of $50,000 at one of its jobsites in New York, New York, which
were shipped from points outside the State of New York.
There is no evidence in the record to suggest that Emmett 's opera-
tions considered singly would meet any of our jurisdictional require-
ments. However, the foregoing does establish that the Association is
engaged in commerce within the meaning of the Act, based upon the
interstate operations of Picoult , one of its members, and it is our prac-
tice to assert jurisdiction over an employer which would not otherwise
meet our standards , if the employer is a member of an association
which bargains collectively for its members and the Association is
itself engaged in commerce within the meaning of the Act. Accord-
ingly, we find that, as the Association is engaged in commerce within
the meaning of the Act , it will effectuate the purposes of the Act to
assert jurisdiction herein . 2
2. The labor organizations involved
The parties stipulated, and we find, that Locals 25 and 199 are labor
organizations within the meaning of Section 2(5) of the Act.
3. The dispute
In lieu of oral testimony, the parties 3 stipulated to incorporate and
make a part of the record herein, the transcript and exhibits in the
Section 10(1) proceeding 4 before the United States District Court
for the Eastern District of New York which involved the same issues
and parties.
The alleged dispute involves the right of Emmett to perform the
electrical work connected with the construction of the East End Syna-
gogue, Long Beach, Long Island, New York. In July 1964, D-Lion
Construction Co., Inc., herein called D-Lion, as general contractor,
awarded the electrical work on the East End Synagogue to Emmett.
2Marble Polishers , Machine Operators and Helpers, Local No. 121, AFL-CIO, etc.
(Miami Marbled Tile Company), 132 NLRB 844; Siemons Mailing Service, 122 NLRB
81, 84.
3 Local 199 did not enter an appearance at the hearing and hence is not a party to
the stipulation.
4Ivan C. McLeod, etc. v . Local 25, International Brotherhood of Electrical Workers,
AFL-CIO (64-C-1010).
LOCAL 25, INT'L BROTHERHOOD, ETC. 673
Emmett, whose employees are represented by Local 199, began work
immediately. Mario Tucci, D-Lion's job superintendent, testified that
on September 14, 1964, he was visited at the jobsite by Joseph Cava-
naugh, a business representative for Local 25. According to Tucci,
Cavanaugh told him that the electricians working on the job were not
members of Local 25, that they were not affiliated with the AFL, and
that the job would probably be picketed if the electricians were not
taken off. Tucci stated that Cavanaugh gave him a list of Local 25,
contractors and said that if Emmett did not sign up with Local 25,
one of the contractors on the list should be engaged to do the electri-
cal work.
Cavanaugh admitted having a conversation with Tucci at the job-
site in early September 1964, at which time he asked Tucci who would
be doing the electrical work. When Cavanaugh was informed that the
work had been awarded to Emmett, he checked his list of Local 25
contractors and not finding Emmett listed, advised Tucci that he did
not believe that Emmett had a contract with Local 25 or that Emmett
was affiliated with the AFL-CIO Building Trades. Cavanaugh tes-
tified that he then suggested to Tucci that Emmett sign up with
Local 25, not realizing at the time that Emmett had a collective-
bargaining agreement with Local 199. Cavanaugh denied making a
claim for jurisdiction over the work or that any reference was made
to picketing. Cavanaugh testified further that he did not tell Tucci
to change electrical contractors, but rather that he wanted Tucci to
employ electricians getting the wage and fringe benefits that are-
received by members of Local 25 under its agreement with other
contractors.5 Cavanaugh denied that he told Tucci that either Emmett
would have to sign with Local 25 or D-Lion would have to engage a
contractor on the Local 25 list. Cavanaugh admits leaving the list of
Local 25 contractors with Tucci; however, he stated that his purpose
was to permit D-Lion to choose one of the listed contractors, in case
Emmett was a nonunion contractor or not signed up with Local 25.
Thereafter, on or about September 16, 1964, Local 25 commenced
picketing at the jobsite with signs which bore the following legend:
To The Public
The Electricians on this job-Emmett Electric-do not work
under wages or working conditions established by Local 25,
IBEW, AFL-CIO. We do not have any dispute with any
other Employer.
LOCAL 25, IBEW, AFL-CIO.
5 The record establishes that the wage rate for employees represented by Local 199 is
substantially lower than that of Local 25 members. However, Cavanaugh admits he did.
not discuss wages and fringe benefits with Tucci.
789-730--66-vol. 152-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a result of the picketing , employees of certain of the subcontractors
refused to cross the picket line , and work on the project was disrupted.
After the picketing had continued for 10 days , D-Lion canceled its
contract with Emmett and engaged M & M Electric , one of the con-
tractors appearing on Local 25 's list, to complete the unfinished elec-
trical work . The picketing was discontinued on or about Septem-
ber 26, 1964, when M & M Electric first appeared on the job.
4. Contentions of the parties
Local 25 contends that no jurisdictional dispute exists because neither
Local 25 nor Local 199 ever claimed the work in question . Local 25
further contends that even if the Board should find that it was in fact
claiming the work, there is no evidence that it engaged in proscribed
conduct within the meaning of Section 8 (b) (4) (i ) and (ii ) (D) of the
Act in furtherance of such an end, and therefore the notice of hearing
must be quashed . While Local 25 admits picketing the jobsite, it
claims its object in so doing was only to publicize the fact that Emmett's
employees were not receiving the prevailing area wage rate and fringe
benefits established by Local 25 . Emmett contends that its employees
are entitled to perform the disputed work because it was originally
assigned to them, and that by reason of Local 25 's illegal conduct
D-Lion was forced to cancel its contract with Emmett and reassign
the electrical work to a contractor whose employees are represented by
Local 25. Local 199 did not make an appearance at either the Section
10(k) or the Section 10(1) proceeding , which was made a part of the
record herein . However, in its brief filed with the Board , Local 199
contends Local 25 has engaged in conduct proscribed by Section 8 (b)
( 4) (i) and ( ii) (D) of the Act and by reason of this conduct Local 199
members have been deprived of work to which they are otherwise
entitled.
All parties appear to agree that in the event the Board should make
an affirmative award , it should be in favor of the employees employed
by Emmett; therefore no evidence was submitted in connection with
this issue.
5. Applicability of the statute
In a Section 10 (k) proceeding it is necessary to determine whether
there is reasonable cause to believe that a violation of Section 8(b)
(4) (D) of the Act has occurred . In this instance , the dual question
is presented as to whether Local 25 was in fact claiming the work in
dispute and , if so, whether it engaged in illegal conduct within the
meaning of Section 8 (b) (4) (i) and ( ii) (D) in furtherance of this
object.
LOCAL 25, INT'L BROTHERHOOD, ETC. 675
Local 25 argues that its sole concern was that the contractor per-
forming the electrical work on the project paid its employees the pre-
vailing area wage rate and fringe benefits. However, significantly
enough, Cavanaugh did not discuss with Tucci the wage rate and
fringe benefits of Emmett employees or, so far as the record indicates,
suggest to Tucci that any differences that might exist could be resolved
by Emmett's agreeing to pay its employees Local 25 scale. Rather,
according to Tucci's testimony, Local 25 made it clear that the job
would be picketed unless either Emmett signed up with Local 25 or
D-Lion removed Emmett from the job and engaged a Local 25 con-
tractor, apparently excluding as an alternative solution that Emmett
agree to pay its employees the area wage rate.
In sum, we find on the basis of the record before us that there is
reasonable cause to believe that Local 25 was claiming the work in
dispute and that a jurisdictional dispute existed.- Likewise on the
basis of the testimony detailed in section 3, supra, that Local 25 threat-
ened to picket and did picket the j obsite in order to compel D-Lion to
assign the electrical work on the project to employees represented by
Local 25, we conclude that there is reasonable cause to believe that
Local 25 engaged in conduct violative of Section 8 (b) (4) (D) and that
the dispute is properly before the Board for determination under Sec-
tion 10(k) of the Act.
Merits of the Dispute
As previously stated, no evidence was submitted by the parties upon
which the Board could make an affirmative award of the work in
dispute. Instead, the parties agreed that in the event the Board found
reasonable cause to believe an unfair labor practice occurred, the
work assignment should be made in favor of the employees of Emmett,
who were first awarded the disputed work. Therefore, in accordance
with this agreement by the parties, we shall determine the dispute by
assigning the work to the electricians employed by Emmett. In making
this determination, we are assigning the disputed work to the employ-
ees of the Employer who are represented by Local 199 but not to that
Union or its members. In consequence we shall also determine that
Local 25 was not and is not entitled, by means proscribed by Section
8(b) (4) (D) of the Act, to force or require D-Lion to assign the dis-
puted work to its members.
6 We find no merit in Local 25's contention that Local 199 never claimed the disputed
work and hence no jurisdictional dispute can be said to exist because of the failure to
establish that two competing groups of employees are seeking the work. The work in
question was originally awarded to the employees of Emmett who are represented by
Local 199, and both Emmett and Local 199 take the position that these employees were
deprived of work to which they were otherwise entitled by Local 25's unlawful conduct.
In such circumstances, it cannot be said that the employees employed by Emmett and
represented by Local 199 are not claiming the work in dispute Cf Local 46, Wood, Wire
and Metal Lathers International Union, AFL-CIO, etc ( Precrete, Inc.), 140 NLRB 1.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
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 Dispute.
1. Employees currently represented by Industrial Workers of Allied
Trades, Local 199, affiliated with the National Federation of Independ-
ent Unions, are entitled to perform all the electrical work connected
with the construction of East End Synagogue, Long Beach, Long
Island, New York.
2. 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 D-Lion Construction Co., Inc., to assign
the aforementioned work to a contractor employing its members.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 25, International Brotherhood of Electrical Work-
ers, AFL-CIO, shall notify the Regional Director for Region 29, in
writing, whether or not it will refrain from forcing or requiring
D-Lion Construction Co., Inc., by means proscribed by Section 8(b)
(4) (D), to assign the work in dispute to employees represented by
Local 25 rather than those represented by Local 199.
MEMBER FANNING, dissenting :
I would quash the notice of hearing in this proceeding for the rea-
sons set forth in my dissenting opinion in Local 25, International
Brotherhood of Electrical Workers, AFL-CIO (Sarrow-Suburban
Electric Co., Inc., et al.), 152 NLRB 531.
Local 1291 , International Longshoremen 's Association , AFL-CIO
and Pocahontas Steamship Company. Case No. 4-CD-119.
May 18,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National Labor
Relations Act, as amended, following a charge filed on August 24,
1964, by Pocahontas Steamship Co. (herein called Pocahontas or the
Employer). The charge alleged that Local 1291, International Long-
shoremen's Association, AFL-CIO (herein called ILA) had violated
Section 8 (b) (4) (D) of the Act by picketing to encourage the employ-
ees of Coslett and Sons, Inc. (herein called Coslett) to cease work for
the purpose of forcing Pocahontas to change its assignment of the
work of opening and closing hatches aboard its ships from the ships'
152 NLRB No. 69.