Intl. Brothd. of Electrical Wkrs., Local 98

National Labor Relations Board - Board Decisions

Dec 1, 1973

207 N.L.R.B. 689 (N.L.R.B. 1973)

INTL. BROTHD. OF ELECTRICAL WKRS., LOCAL 98
International Brotherhood of Electrical Workers,
Local 98 It and Inter Communication Services, Inc.2
and Communication Workers of America,
AFL-CIO 3 Case 4-CD-319
December 1, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by CWA, alleging that IBEW had
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the Employer to assign certain work to
its members rather than to employees represented by
CWA.
Pursuant to notice, a hearing was held before
Hearing Officer Jeffrey C. Falkin on July 12, 1973.
All parties at the hearing were afforded full opportu-
nity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the
issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The record discloses that the Employer, which is
located in Newburgh, New York, is engaged in the
business of electrical installation and maintenance of
communication equipment. The Employer com-
menced operations in January 1973. The parties
stipulated, and we find, that the Employer is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the policies of
the Act to assert -jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that IBEW and
CWA are labor organizations within the meaning of
Section 2(5) of the Act.
i Herein called IBEW.
2 Herein called ICS.
3 Herein called CWA.
4 The parties stipulated to the inclusion, as part of the instant record, of
the transcript and exhibits in the earlier 10(1) proceeding under the Act
III. THE DISPUTE
A. Background and Facts 4
689
ICS accepted a subcontract from Arcata Commu-
nications Corporation to install telephone equipment
and systems in the Pennsylvania College of Podiatric
Medicine Building5 being constructed at Eighth and
Race Streets, Philadelphia, Pennsylvania.
ICS and CWA entered into a recognition agree-
ment on January 24, 1973, but no collective-bargain-
ing agreement was negotiated. Pursuant to said
agreement, the Employer assigned the telephone
installation work at the College to its employees.
A crew of five ICS employees, including Foreman
James Dougherty, reported to the jobsite on April 16,
1973.6 All five members of the crew were represented
by CWA. When Dougherty and his men arrived at
the worksite, they were approached by Mitch Tuben,
a shop steward for IBEW, which represented other
employees who were working elsewhere at the site.
Dougherty testified that Tuben introduced himself
and asked whether the ICS employees had "checked
in with [IBEW], in regard to doing the work."
Dougherty told Tuben that he had not done so.
Dougherty further testified that Tuben asked him to
telephone James McDevitt, an IBEW business agent,
who requested that Dougherty not begin the installa-
tion until he [McDevitt] came to the jobsite.
Although Dougherty waited until about 4 or 4:30
p.m., McDevitt did not appear.
On April 17, the ICS employees began work at the
College at 8 a.m. At 9 a.m., McDevitt approached
Dougherty and asked him "if ICS was going to do
the work." When Dougherty replied in the affirma-
tive, McDevitt stated that he did not feel that it was
CWA's work, but that it was IBEW's work. McDev-
itt also commented to Dougherty, "that he [McDev-
itt] knew [the IBEW] wouldn't pursue that, on the
grounds of the work awarded, but on wage stand-
ards.
The following morning, April 18, Dougherty had
another conversation with the IBEW shop, steward,
Tuben, who stated that he felt that the disputed work
was IBEW work.
On April 23, IBEW members began picketing7 the
jobsite about 7:30 a.m., at which time the president
of the College, Dr. James Bates, arrived on the scene.
When Dougherty and his men reported for work, Dr.
Bates told them that they would have to remain off
the job until the dispute could be settled. Pursuant to
involving the same parties and conduct
5 Herein called the College.
6 All dates mentioned herein are in 1973 unless otherwise stated
7 The picket signs contained the legend: "This Is A Line To Protest The
Wages."
207 NLRB No. 109
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dr. Bates' request, Dougherty and his crew remained
off the job on April 23 and 24.
At Dr. Bates' suggestion, Dougherty telephoned
the IBEW's attorney, Bernard Katz, and was
informed that the purpose of the picketing was to
protest "the destruction of area wage standards."
Katz also informed Dougherty, that employees
represented by IBEW in the Philadelphia area
received substantially higher wages than those of
employees represented by CWA.
Dougherty and the other ICS employees decided to
report to work on April 25 and to bring with them
Joseph Clarkin, the CWA representative. When
Dougherty and Clarkin arrived at the jobsite at 8
a.m., they were approached by Tuben, the IBEW
shop steward, who began questioning them as to
whether they (ICS employees) intended to work that
morning. When Dougherty asked Tuben whether
there would be picketing if the ICS employees went
back to work, Tuben answered in the affirmative.
Clarkin then asked Tuben, "Why do you have picket
line? You're a union and we're a union." Tuben
replied, "Well, we'll organize you."
The ICS employees worked about 6 hours on April
25, but on April 26 the picketing resumed with the
pickets carrying the same signs which were used on
April 23.
When George Potter, an official of the College, was
informed of the picketing, he told Dougherty that he
and his men would have to leave the jobsite'until the
dispute could be settled. As the ICS crew was leaving
the College, Dougherty approached McDevitt, who
was one of the pickets, and asked him whether IBEW
would have picketed the job if the Bell Telephone
Company had been doing the disputed work.
McDevitt replied in the negative and explained that
"they're a utility and not subject to paying the area
wage taxes." Pursuant to Potter's request, the ICS
employees did not report to work after April 26.
On May 11, CWA filed charges against IBEW for
violation of Section 8(b)(4)(i) and (ii)(D) of the Act.
Pursuant to an injunction issued on July 18 by the
United States District Court for the Eastern District
of Pennsylvania, the ICS employees returned to work
on July 23 but IBEW resumed its picketing. In a
hearing held on July 27, the District Court for the
Eastern District of Pennsylvania refused to grant
CWA's motion to hold IBEW in civil contempt
because the court did not find clear and convincing
evidence that would support such a determination.
telephone equipment and systems -in the Pennsylva-
nia College of Podiatric Medicine -Building at Eighth
and Race Streets , Philadelphia , Pennsylvania.
C. Contentions of the Parties
The CWA contends that there is reasonable cause
to believe that IBEW has violated Section 8 (b)(4)(i)
and (ii)(D) of the Act and that the record supports
ICS's assignment of the work in dispute to its
employees who are represented by CWA. The CWA
cites in support of the assignment considerations of
area and industry practice , skills , and ICS's recogni-
tion agreement with CWA.
IBEW asserts that its motion to quash the notice of '
hearing should be granted because it disclaims the
disputed work . IBEW also contends that its sole
objective was to protest the destruction of area wage
standards.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has
occurred.
As stated above, the record shows that IBEW
picketed the worksite on two separate occasions: The
record also discloses that the picket signs indicated
that the purpose of the picketing was to protest wage
standards. IBEW therefore disclaimed the disputed
work, asserting that its sole purpose was to protest
wage standards. However, the conversations between
CWA and IBEW representatives at the worksite
clearly indicate that an object of the picketing was to
secure the disputed work for IBEW members.
On the basis of the entire record, we find that the
IBEW disclaimer is not valid and we are satisfied
that there is reasonable cause to believe a violation of
Section 8(b)(4)(D) has occurred. Accordingly, we
hereby deny the IBEW motion to quash the notice of
hearing.
Based on the record before us, there is at present
no agreed-upon method for the voluntary adjustment
of this dispute. Under these circumstances, we find
that it will effectuate the policies underlying Sections
10(k) and 8(b)(4)(D) of the Act for us to determine
the merits of the dispute. Accordingly, we find that
this dispute is appropriate for resolution under
Section 10(k) of the Act.
B. Work in Dispute
The work in dispute herein is the installation of
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
INTL. BROTHD. OF ELECTRICAL WKRS., LOCAL 98 691
an affirmative award of the disputed work after
giving due consideration to various factors .8
1. Certification and collective-bargaining
agreements
None of the labor organizations involved herein
has been certified by the Board as the collective-
bargaining representative for a unit of the Employ-
er's employees. However, the Employer on January
24 agreed to recognize CWA as the representative of
its employees.
2. Employer's assignment
Pursuant to its recognition agreement, the, Employ-
er assigned the work in dispute to its employees.
3. Employer, industry, and area practice
The record clearly establishes that since the
Employer commenced business, its own employees,
who are members of the CWA, have performed all
aspects of the disputed work. The record also
indicates that it is the practice of Western Electric
Company,9 which installs about 99 percent of the
telephone equipment in the Philadelphia area, to use
CWA members. It is also evident from the record
that the work performed by, the Employer's employ-
ees is substantially similar to that performed by the
employees of Western Electric Company. We there-
fore conclude that industry, area, and employer
practice favor the assignment of the disputed work to
employees represented by CWA.
4. Skills
The record indicates that (1) the Employer's
employees possess the necessary skills to perform the
disputed work and (2) the Employer is satisfied with
their performance.
Conclusion
Having considered all pertinent factors herein, we
conclude that employees represented by CWA are
entitled to perform the work in dispute. This
assignment is consistent with the recognition agree-
ment and Employer, industry, and area practice. In
addition, the Employer is satisfied with the perform-
ance of its employees who possess the requisite skills
for the type of work involved herein. We conclude on
the basis of the above factors that the Employer's
assignment should not be changed. Therefore, we
shall award the work in dispute to employees of Inter
Communication Services, Inc., who are represented
by the Communication Workers of America,
AFL-CIO, 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 foregoing
and the entire record in this case, the National Labor
Relations Board hereby makes the following Deter-
mination of Dispute:
1. Employees of Inter Communication Services,
Inc., who are currently, represented by Communica-
tion Workers of America, AFL-CIO, are entitled to
perform the work of installing telephone equipment
and systems at the Pennsylvania College of Podiatric
Medicine.
2. International Brotherhood of Electrical Work-
ers, Local 98, is not entitled by means proscribed by
Section 8(b)(4)(i) and (ii)(D) of the Act to force or
require Inter Communication Services, Inc., to assign
the above work to individuals represented by Interna-
tional Brotherhood of Electrical Workers, Local 98.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Broth-
erhood of Electrical Workers, Local 98, shall notify
the Regional Director for Region 4, in writing,
whether or not'they will refrain from forcing or
requiring Inter Communication Services, Inc., by
means proscribed by Section 8(b)(4)(D) of the Act, to
assign the work in dispute to employees represented
by it rather than tol employees represented by
Communication Workers of America.
8 N. L.RB., v. Radio & Television Broadcast Engineers Union, Lccal 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573, 586.
9 A subsidiary of Bell Telephoie Company