Local 3, IBEW

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 592 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO and L. M. Ericsson Tele-
communications, Inc., New York Division and
Local 1109, Communications Workers of Amer-
ica, AFL-CIO
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO and Local 1109, Communi-
cations Workers of America, AFL-CIO and L.
M. Ericsson Telecommunications, Inc., New
York Division. Cases 29-CD-280 and 29-CD-
283
September 30, 1981
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by L. M. Ericsson Telecommuni-
cations, Inc., New York Division, herein called the
Employer, and Local 1109, Communications Work-
ers of America, AFL-CIO, herein called Local
1109,1 alleging that Local 3, International Brother-
hood of Electrical Workers, AFL-CIO, herein
called the Respondent or Local 3, had violated
Section 8(b)(4)(D) of the Act by engaging in cer-
tain proscribed activity with an object of forcing
or requiring the Employer to assign certain work
to its members rather than to employees represent-
ed by Local 1109.
Pursuant to notice, a hearing was held before
Hearing Officer William Shuzman on July 23,
1980. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
'The charge in Case 29-CD-280 was filed by the Employer on June
17, 1980. The charge in Case 29-CD-283 was filed by Local 1109 on
July 9, 1980. The cases were consolidated on July 11, 1980.
2 The Regional Director for Region 29 petitioned the United States
District Court for the Eastern District of New York for injunctive relief
pending final adjudication of the complaints by the Board. Hearings on
the petition were held before Judge Sifton on July 7, 8, and 9, 1980. The
record of those proceedings was received by agreement of the parties as
evidence in the 10(k) hearing in this case.
258 NLRB No. 81
1. THE BUSINESS OF THE EMPLOYER
The Employer admits, and we find, that the Em-
ployer, a domestic subsidiary of a Swedish corpo-
ration (Aktiebologet L. M. Ericsson) with its prin-
cipal place of business in Woodbury, New York, is
engaged in the sale, installation, and servicing of
private telephone interconnect equipment in the
New York City metropolitan area. During the past
year, the Employer purchased equipment, includ-
ing electronic switches valued in excess of $50,000,
directly from its parent company in Sweden. The
Employer admits, and we find, that the Employer
is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and it will effectu-
ate the purposes of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
1109 and Respondent are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Ericsson is engaged in the sale, installation, and
servicing of private telephone interconnect equip-
ment in the New York City area. Ericsson is party
to a collective-bargaining agreement with Local
1109, Communications Workers of America, AFL-
CIO, covering Ericsson's employees.
Sometime prior to May 20, 1980, Ericsson en-
tered into a contract with the Kings Highway Hos-
pital (hereinafter Hospital) to install an automatic
telephone system at its facility in Brooklyn, New
York, and to connect that system to telephone lines
leased from the Bell System. Ericsson then subcon-
tracted portions of the work required under the
contract to Allran Electric Corporation, an electri-
cal contractor which installs telephone intercon-
nect equipment. Allran's employees are represented
by Local 3. The only portion of its contract with
the Hospital that Ericsson reserved to itself was the
installation of an ASB 900 electronic switch manu-
factured by Ericsson's parent company. The ASB
900 is a very delicate, complex, and expensive
piece of machinery, costing approximately
$150,000.
Work at the Hospital site started in late May
1980. Allran employees, supplied by Local 3, per-
formed 6 full days of work at the site. Allran's
president, Steve Michaeloff, testified that when he
first placed a call to Local 3 for a telephone man
for the Hospital project on or about May 28, he
was told to speak with Local 3 business agent Wil-
liam Gillin. Michaeloff testified that Gillin told him
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LOCAL 3, IBEW
at that time that Michaeloff would have to take a
"total job," including the switch and maintenance
work. Michaeloff told Gillin that he would go back
to Ericsson and work out the problem.3
On June 3, 1980, four Local 3 members em-
ployed by Allran performed a full day of work at
the Hospital. At 6 p.m., two of the four employees,
Joseph Spivak and Mitchell Dworkin, appeared at
Allran's ofice with a third Local 3 member who
had been working the same day in Manhattan on
another Ericsson telephone subcontract. Michaeloff
was present, as was Joe Gillmore, Ericsson's pro-
ject coordinator at the Hospital. The three employ-
ees told Michaeloff that they would not continue
working at the Hospital job, or on other Ericsson
jobs. Michaeloff then announced that he would call
the Union to find out what the problem was. When
he was unable to get Gillin on the phone, Michae-
loff went with Gillmore to Local 3's office. Mi-
chaeloff testified that he spoke with Gillin, who ap-
peared to be quite angry. Gillin stated that Michae-
loff had no appointment and that he should call
Walter Whitelaw, chairman of the telephone inter-
connect committee, in regards to this problem. 4
Gillin also commented that Michaeloff should not
be doing work for Ericsson.
On June 4, Allran's Local 3 employees again re-
fused to work on the Hospital job. Michaeloff
called the employment department of Local 3 in
order to obtain other telephone men, but was told
that no men were available. Michaeloff then called
Whitelaw, and repeated what Gillin had told him
the day before. Whitelaw told Michaeloff that he
did not think that Michaeloff should be taking this
type of work, but that Michaeloff could come
before the review board on June 11, in order to
discuss the situation. Michaeloff testified that Whi-
telaw also told him that he had to have a total job,
including the switch and a year of maintenance.
On June 5, Michaeloff told Ericsson's New York
Division Operations Manager Richard Correia that
Allran was unable to perform any of the work at
the Hospital, and that his employees refused to
work. Michaeloff informed Correia that both Whi-
3 Gillin, while not specifically denying that this conversation took
place, testified that he first learned that Michaeloff might have taken a
partial job on June II, at the review board meeting, described infra.
Since the Board is not charged with finding that an 8(bX4XD) violation
has in fact occurred, but only that reasonable cause exists for finding
such a violation, it is not necessary to rule upon the credibility of the
testimony at issue. Local 24, the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United States and
Canada. AFL-CIO (EL. & S Contracting Co., Inc.), 231 NLRB 158
(1977).
' The telephone interconnect committee is a labor-management group
consisting of representatives of employers working in this field and Local
3 representatives. A subgroup called the telephone interconnect review
board, consisting of three employer representatives and three Local 3
representative, is an advisory committee which meets to discuss problems
as they arise. Whitelaw is the employer chairman of each group.
telaw and Gillin had told him that if a Local 3 con-
tractor takes a telephone job, he must take the
whole job, including the switch and maintenance
work. Michaeloff told Correia that it was therefore
necessary for him to have the whole job. Correia
told Michaeloff that he would have to check with
his superior and report back to Michaeloff.
On June 6, Ericsson's New York Division Gen-
eral Manager Don Costello and Operations Man-
ager Correia met with Michaeloff to attempt to
find a solution to the dispute. A solution was pro-
posed where the switch would be preassembled
and pretested in Ericsson's office, shipped to the
Hospital site, and programed and tested by Erics-
son engineers, with Allran employees terminating
the cables. At the meeting, Michaeloff made a
phone call to Whitelaw about the proposed solu-
tion. Whitelaw told Correia on the phone that he
would make a call to an unnamed person to see if
he could assist Michaeloff. Correia testified that
when Whitelaw called back within an hour he told
Correia that Local 3 would not do any of the in-
stallations for Ericsson unless Local 3 was able to
get all of the new installations in New York City,
including the switches and maintenance. After
these two calls, Ericsson and Allran signed a con-
tract giving Allran all of the installation work at
the Hospital, including the termination of all tele-
phone cables within the switchroom, the assembly
of the telephone equipment, and the servicing of
the system for a -year period. At this time, Erics-
son was required by its agreement with the Hospi-
tal to complete the installation of the telephone
system on June 18.
No work was done at the Hospital by Allran's
Local 3 employees on June 9 or 10. On June 11,
Michaeloff attended a meeting of the telephone in-
terconnect review board which had been called in
part to discuss the Hospital situation. Three Local
3 representatives (including Gillin) and three em-
ployer representatives (including Whitelaw) attend-
ed. Michaeloff requested permission to proceed
with the Hospital work on the basis of his June 6
agreement with Ericsson. Michaeloff testified that
Gillin told him repeatedly that, if he were going to
work in the interconnect industry, he would have
to take total jobs. However, Michaeloff received
no decision from the review board.
On June 12, Michaeloff sent two Local 3 em-
ployees to the Hospital. One of the employees,
Biancanello, called Gillin and asked if he would be
disciplined by Local 3 if he refused to work on the
Hospital job. Gillin told him that he would not be
punished. Thereafter, Biancanello called Michaeloff
and told him that he was refusing to work at the
Hospital site with Ericsson employees. The other
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee, Spivak, also left the site with Biancan-
ello. The same day, Michaeloff told Ericsson that
Allran would not be able to complete the Hospital
job. Allran did no further work at the site. Subse-
quently, Ericsson hired a different subcontractor to
finish the portions of the work which Allran had
previously agreed to do, with Ericsson's own em-
ployees installing the ASB 900 switch.
B. The Work in Dispute
The work in dispute involves the installation of
an ASB 900 switch at the Kings Highway Hospital
Center, Inc., in Brooklyn, New York, and the serv-
icing of the switch after its installation.'
C. The Contentions of the Parties
The Employer, Ericsson, contends that the
Board should assign the disputed work to employ-
ees represented by Local 1109. Ericsson contends
that the ASB 900 switch is a piece of electronic
equipment unique to Ericsson, and that the only in-
dividuals who have been trained to install and serv-
ice this type of switch are Ericsson's own employ-
ees, who are represented by Local 1109.
Local 3 contends that the Board lacks jurisdic-
tion of this case because there was no demand by
Local 3, but merely a refusal to perform part of the
work described in the notice of hearing because it
was not part of a total job.
Local 1109 contended at the July 23, 1980, hear-
ing that employees represented by Local 1109 are
entitled to do the work in dispute as a result of the
contractual agreement between Ericsson and Local
1109.6
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is a reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
There is reasonable cause to believe that Allran's
Local 3 employees refused to work at Ericsson's
job at the Hospital after June 3, 1980, because All-
ran's subcontract with Ericsson was not a "total
job." Local 3 argues that if there was a refusal to
perform part of the work at the Hospital, it was
not a demand for work, but rather a refusal to do a
' The original order consolidating cases and rescheduling hearing did
not refer to the servicing of the switch; however, the record establishes
that this work is also a matter of dispute between the parties.
6 Local 1109 further contended at the hearing that Local 1109 employ-
ees are entitled to perform all of the work under the Ericsson contract
with the Hospital, including the work subcontracted to Allran: however.
this is not at issue in this case.
partial job. However, the record indicates that
Local 3 refused to perform its portion of the work
under the subcontract in order to obtain the assign-
ment of the work in dispute. Steve Michaeloff testi-
fied that he was told repeatedly by Local 3 busi-
ness agent Gillin that Michaeloff would have to
take total jobs if he wished to do interconnect
work. This message, delivered in the context of a
refusal by Local 3's employees to finish their work
at the Hospital, was clearly intended to pressure
Michaeloff into obtaining the remainder of the
work from Ericsson. Although Local 3 contends
that it did not tell its employees not to work, Gillin
testified that he made no attempt to convince Bian-
canello to return to the Hospital site; rather, he
told Biancanello that Local 3 would not discipline
him if he refused to work on the Hospital job, al-
though the Union's international constitution char-
acterizes the causing of a stoppage of work because
of any alleged grievance or dispute without having
the consent of the local or its officers as miscon-
duct for which employees represented by Local 3
may be penalized. In fact, Gillin admitted in his
testimony that if Local 3 had been shown a con-
tract establishing that Allran had obtained the total
job at the Hospital, all employees represented by
Local 3 would have been directed by Local 3 to
remain on the job. Thus, based on the evidence
presented, we conclude that there is reasonable
cause to believe that a violation of Section
8(b)(4)(D) has occurred. Since there is no evidence
of an agreed-upon method for the voluntary adjust-
ment of the dispute to which all parties are bound,
we conclude that this dispute is properly before the
Board for determination under Section 10(k) of the
Act. 7
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to various factors.8
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case.9
The following factors are relevant in making the
determination of the dispute before us:
; Local 3's motion to dismiss the notice of hearing is hereby denied.
",N.L.R.B. v. Radio & Television Broadcast Engineers Union. Local 1212.
International Brotherhood of Electrical Workers. AFL-CIO {Columbia
Broadcasting System], 364 U.S. 573 (1961).
9 International Association of Machinists. Lodge No. 1743, AIFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
594
LOCAL 3. IBEW
i. Collective-bargaining agreements
Local 1109 represents all of Ericsson's employees
who are engaged in the installation, maintenance,
and repair of interconnect telephone equipment.
Ericsson and Local 1109 are employees at all times
relevant herein. There is no evidence that Ericsson
is a party to any collective-bargaining agreement
with Local 3. All of Allran's employees are mem-
bers of Local 3, and a collective-bargaining agree-
ment between Allran and Local 3 was in effect
until June 11, 1980; however, no provision in that
collective-bargaining agreement specifically covers
the type of work in question. We conclude, there-
fore, that the consideration of collective-bargaining
agreements favors the assignment of the work to
Ericsson's employees represented by Local 1109.
2. Employer, industry, and area practice
Ericsson presented testimony that the ASB 900
has been installed in approximately 20 locations, 4
of these having been installed in the New York
City metropolitan area. Each installation was per-
formed by Ericsson's Local 1109 installers under
the supervision of Ericsson's engineering depart-
ment personnel. Accordingly, we find that the Em-
ployer's practice favors awarding the work to the
Employer's employees who are represented by
Local 1109. As there are no other telecommunica-
tions switches comparable to the ASB 900, there is
no relevant industry or area practice other than
that of the Employer. Accordingly, we find that
these factors favor neither group.
3. Skills, efficiency, and economy
Ericsson presented evidence that the ASB 900 is
a costly piece of electronic equipment unique to
Ericsson. The only training courses which have
been given in the United States for the installation
of the ASB 900 switch have been given by Erics-
son for its own employees. The basic training
course lasts 2 weeks; however, after the course, a
substantial amount of experience under the direc-
tion of Ericsson supervisors is required before an
employee can install a switch on his own. Thus,
Ericsson presented evidence that even employees
trained for the switch work must be supervised by
Ericsson's engineering department personnel. Evi-
dence was also presented that the maintenance of
the switch requires an even higher level of exper-
tise than the initial installation. No evidence was
presented that any employee represented by Local
3 has received the training or has the experience
necessary to install an ASB 900 switch. We there-
fore find that the skills and expertise required to in-
stall and service the ASB 900 favor the assignment
of work to the Employer's employees represented
by Local 1109.
4. Employer's assignment and preference
According to its agreement with Allran, Erics-
son's own employees were to perform the installa-
tion of the ASB 900 at the Hospital. Subsequently,
Ericsson was informed by Allran that the latter
would not perform any further installation work at
the Hospital unless Allran employees were permit-
ted to install the ASB 900. Consequently, an agree-
ment was executed on June 6 whereby Allran
would do all of the installation work on the pro-
ject, as well as a year of maintenance. However,
Allran's president, Steve Michaeloff, testified that
Allran had to accept as part of this arrangement
certain supervision by Ericsson of the work to be
performed on the switch. Michaeloff testified that
he insisted to Ericsson that Ericsson have supervi-
sory personnel there to oversee Allran's work, so
that there was no possibility that the equipment,
which he described as "very sophisticated," would
be destroyed. Since this June 6 agreement never
became operative, Ericsson's own employees actu-
ally installed the ASB 900.
Although Ericsson normally subcontracts the in-
stallation of the various support systems to the
ASB 900, the installation of the ASB 900 switch
itself has always been reserved for Ericsson em-
ployees. Ericsson officials testified that Ericsson
only agreed to allow Allran employees to install
the switch, with supervision, because Allran insist-
ed that it would otherwise be unable to complete
the project by June 18, the targeted completion
date. Thus, it has been Ericsson's preference
throughout that its own employees install the
switch. We find that the Employer's original as-
signment of the work to its employees represented
by Local 1109, and its continuing preference that
these employees do the work in dispute, favors the
assignment of the work to the Employer's employ-
ees represented by Local 1109.
5. Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the employees of L. M. Ericsson who
are represented by Local 1109 are entitled to per-
form the work in dispute. We reach this conclusion
on the basis of Ericsson's collective-bargaining
agreement with Local 1109 covering this type of
work; Employer's past practice of reserving this
type of work to its own employees; the fact that
only Ericsson's employees have the expertise nec-
essary to work with the ASB 900; and the Employ-
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er's original assignment and preference that the
work in dispute be done by these employees.
In making this determination, we are awarding
the work in question to employees who are repre-
sented by Local 1109, Communications 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 basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
I. Employees of L. M. Ericsson Telecommunica-
tions, Inc., New York Division, who are represent-
ed by Local 1109, Communications Workers of
America, AFL-CIO, are entitled to perform the in-
stallation of the ASB 900 switch at the Kings
Highway Hospital Center, Inc., in Brooklyn, New
York, and the servicing of the switch after its in-
stallation.
2. Local 3, International Brotherhood of Electri-
cal Workers, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to
force or require L. M. Ericsson Telecommunica-
tions, Inc., New York Division, to assign the dis-
puted work to employees represented by that labor
organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 3, Interna-
tional Brotherhood of Electrical Workers, AFL-
CIO, shall notify the Regional Director for Region
29, in writing, whether or not it will refrain from
forcing or requiring the Employer, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign
the disputed work in a manner inconsistent with
the above determination.
596