Local 3, Int'l Brotherhood Of Electrical Workers

National Labor Relations Board - Board Decisions

Nov 1, 1963

144 N.L.R.B. 1318 (N.L.R.B. 1963)

1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make the above-named and Anthony Kruzel , Jr., whole for any loss
of pay they may have suffered by reason of the discrimination against them.
CRUSADER-LANCER CORP . AND R. D.
SPICKLER CO., INC.,
Employer.
Dated--- ---------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify any of the above -named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Anyone having any question concerning this notice or compliance with its pro-
visions may communicate directly with the Board 's Regional Office, 24 School Street,
Boston 8, Massachusetts , Telephone No. Lafayette 3-8100.
Local 3, International Brotherhood of Electrical Workers, AFL-
CIO and Western Electric Company, Incorporated and Diesel
Construction Company, Inc.; New York Telephone Company;
Communications Workers of America , AFL-CIO; Fischbach
and Moore, Inc.; Local 1190, Communications Workers of
America, AFL-CIO, Parties in Interest . Case No. 2-CD-240.
November 1, 1963
DECISION AND ORDER
On July 12, 1963, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief. Western and Telco filed a
brief in support of the Intermediate Report.
Pursuant to the provision 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 Leedom and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
1 Respondent contends that ( 1) the complaint should be dismissed because the Trial
Examiner failed to make an independent determination that its members are entitled to
perform the work in dispute ; ( 2) In any event , the case Is moot because the disputed work
at the Pan American Building , which gave rise to this proceeding , was completed prior
to the Board 's issuance of its Decision and Determination of Dispute herein, Local Union
144 NLRB No. 130.
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1319
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.2
No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric Cam,-
pany, Incorporated ), 141 NLRB 888 Respondent further contends that, ( 3) under any
circumstances , the Board 's Determination of Dispute and the Trial Examiner 's Recom-
mended Order should be modified so as to resolve and remedy only the dispute over the
aforementioned work at the Pan American Building . We find no merit in these conten-
tions As to ( 1), in its Decision and Determination of Dispute , the Board has already
examined and rejected Respondent ' s claims to the disputed work. This award is not open
to review by a Trial Examiner in a proceeding on an 8 ( b) (4) (D) complaint . Local 1291,
International Longshoremen's Association and International Longshoremen 's Association
(Pennsylvania Sugar Division , National Sugar Refinery Company ), 142 NLRB 257. As
to (2), we do not agree that the case is moot, particularly since it is possible in view of
Respondent 's continuing claims to this work that similar disputes may occur in the future ;
as to ( 3), for the same reasons we adopt the Trial Examiner ' s Recommended Order See
International Union of Operating Engineers , Local 66, AFL-CIO (Frank P Badolato &
Son), 135 NLRB 1392 , 1401 ; Local 1291 , International Longshoremen 's Association, AFL-
CIO (Northern Metal Company ), 142 NLRB 1228.
'The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent , Local 3, International Brotherhood of Electrical Workers , AFL-CIO,
its officers , agents , successors , and assigns , shall:
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, in which the charge was filed on April 5, 1962, and the complaint
was issued on April 24 , 1963, involves allegations that the Respondent , Local 3, Inter-
national Brotherhood of Electrical Workers, AFL-CIO , violated Section 8(b) (4) (i)
and (ii ) (D) of the National Labor Relations Act, as amended , 29 U.S .C., Sec. 151,
et seq. On June 24 , 1963, Trial Examiner A. Bruce Hunt conducted a hearing
at New York, New York , at which the General Counsel , the Respondent , Western
Electric Company , Incorporated (herein called Western ), New York Telephone
Company (herein called Telco ), Diesel Construction Company, Inc. (herein called
Diesel ), and Communications Workers of America and its affiliate , Local 1190
(herein called , respectively , CWA and Local 1190 ), were represented by counsel.
The facts and issues are covered by the pleadings , the Respondent 's single exhibit, and
statements of counsel . There were no witnesses . The parties waived oral argument
and the filing of briefs before me . Upon the entire record , I make the following:
FINDINGS OF FACT
1. THE SEVERAL EMPLOYERS
Western , a New York corporation , is engaged in various States in the manu-
facture, sale , and distribution of telephone equipment . It annually ships products
valued in excess of $50 ,000 across State lines.
Telco, a New York corporation , provides local and long-distance telephone
service as part of a nationwide telephone system . Telco annually receives gross
revenue in excess of $1 million from communication services between New York
and other States.
Diesel , a New York corporation , is a general contractor in the building and con-
struction industry. Diesel anually purchases materials valued in excess of $50,000
which are shipped directly across State lines to its places of business in New York.
Fischbach and Moore , Inc., (herein called Fischbach), a New York corporation,
is an electrical contractor in the building nand construction industry. Fischbach an-
nually purchases materials valued in excess of $50,000 which are shipped directly
across State lines to its places of business in New York.
There is no dispute , and I find , that each of the named employers is engaged
in commerce within the meaning of the Act.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNIONS
The Respondent, Local 3, is a labor organization which admits to membership
employees of Fischbach and other electrical contractors.
CWA is a labor organization which admits to membership employees of Western.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The basic issue is whether the Respondent violated Section 8(b) (4) (i ) and (ii) (D)
of the Act . The subordinate issues are legal, not factual . The reader 's attention is
directed to the Board 's Decision and Determination of Dispute in Local Union No. 3,
International Brotherhood of Electrical Workers, AFL-CIO ( Western Electric Com-
pany, Incorporated ), 141 NLRB 888. In that case , a proceeding pursuant to Section
10(k) of the Act, the Board made certain determinations which are dispositive of the
issues before me.
B. Facts and conclusions
Briefly, at times material , Diesel was the general contractor and Fischbach was an
electrical contractor on the construction of the Pan-Am Building in New York City.
Telco leased from the building 's management certain space in which to install and
maintain telephone equipment known as a Centrex System, and Telco engaged
Western to install the system . Western, in turn , assigned to its employees , represented
by CWA, certain work yin connection with the system. The Respondent , claiming
jurisdiction over the work , engaged in conduct which resulted in charges being filed
against the Respondent by Western . In the Section 10 (k) proceeding, to which the
Respondent was a party, the Board , under the heading "Determination of Dispute,"
held that:
1. Employees of Western Electric Company, Incorporated , engaged as in-
stallers, currently represented by the [CWA], are entitled to perform the fol-
lowing procedures in the installation of a No. 5 crossbar central office with
centrex features when such work is performed by Western : ( 1) to drill holes
in the floors that are necessary for securing the equipment in place; (2) to erect
equipment frames and put up equipment superstructure , including rod supports
for the ceiling ; ( 3) to put up cross-connecting frames and mount terminal
blocks; (4) to install a powerplant ; ( 5) to run the connection from the power-
plant to the equipment previously mentioned ; and (6) to install bay and aisle
lighting which hangs from the superstructure and illuminates the aisles that are
made by the frames when they are in position.
2. [Respondent ] is not entitled by means proscribed by Section 8(b) (4) (D) to
force or require [Telco] and/or Western . . . to assign to employees engaged as
electricians who are represented by [Respondent ] those procedures in the instal-
lation of a No. 5 crossbar central office with centrex features , which procedures
are detailed in paragraph 1, supra, of this Determination of Dispute.
3. Within 10 days from the date of this Decision and Determination of Dispute,
[Respondent] shall notify the Regional Director for ,the Second Region , in writ-
ing, whether or not it will refrain from forcing or requiring [Telco] and/or
Western . . . by means proscribed by Section 8(b) (4) (D ) to assign the above-
described disputed work in the installation of a No. 5 crossbar central office with
centrex features to electricians rather than to installers.
The Respondent did not comply with paragraph No. 3 above . Instead , on April 9,
1963, the Respondent 's counsel wrote to the Regional Office's compliance officer that
"Local Union No. 3 believes that the decision of the Board is unjust and inequitable
and, therefore , does not intend to comply therewith." I
On April 24, 1963, the General Counsel issued the complaint in this proceeding.
I'he factual allegations are largely admitted by the Respondent . Before I relate
additional facts, I shall set forth the pertinent provisions of the Act. Section 8(b) (4)
provides that it shall be an unfair labor practice for a labor organization or its
agents-
'At the hearing the Respondent asserted, without contradiction by other parties, that
the pertinent work on the Pan-Am Building had been completed before the Board issued
its Decision and Determination of Dispute in the Section 10(k) proceeding In footnote 12
of that Decision , the Board said, however , that its determination covers "assignment of
the work in issue here in any area served by Telco, where the geographical jurisdiction of
CWA and Local 3 coincide." Thus, the Decision is applicable to work in addition to that
In the Pan-Am Building.
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1321
(i) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce ... to engage in, a strike or a refusal in the course
of his employment ... to perform any services; or (ii) to threaten, coerce, or
restrain any person engaged in commerce . . . where in either case an object
thereof is:
(D) forcing or requiring any employer to assign particular work to employees
in a particular labor organization . . . rather than to employees in another labor
organization . unless such employer is failing to conform to an order or
certification of the Board determining the bargain representative for employees
performing such work .. . .
Turning to the unfair labor practice allegations of the complaint which are un-
denied, I find that since about March 1, 1962, the Respondent has demanded that
Western and Telco arrange for the assignment of the disputed work to employees
who are members of, or represented by, the Respondent rather than to Western's
employees who are members of, or represented by, the CWA; that during March
and April 1962, the Respondent, by its Shop Steward Breitman, warned Diesel that
the Respondent would cause employees of Fischbach who worked in the Pan-Am
Building to cease work if persons not represented by the Respondent were permitted
to perform the disputed work, and that Breitman also warned Diesel that the Respond-
ent would turn off the electric power in that building because employees of Western,
represented by the CWA, were performing the disputed work; that during March and
April 1962, the Respondent caused the electric power to be turned off in the building;
and that about March 2 and April 4, 1962, Breitman and other representatives of
the Respondent, in furtherance of the Respondent's demand that persons represented
by it perform the disputed work, ordered, directed, instructed, and induced employees
of Fischbach to engage in strikes or refusals in the course of their employment to
perform services.2
We turn to the two defenses which the Respondent raised at the hearing One is
recited in the Respondent's letter of April 9, 1963, to the compliance officer, quoted
above. The merit, if any, in that defense is not open for consideration by me because
I am bound by the Board's determination in the Section 10(k) proceeding The
second defense relates to the allegation of the complaint that the object of the Respond-
ent's conduct was to force or require Western and Telco to assign the disputed work
"to employees in Respondent rather than to employees in CWA." The Respondent
asserts, however, that the object was to force or require Western and Telco "to con-
tract with an electrical contractor, whose employees are members of the Respondent,
for the electrical contractor to perform" the disputed work.3 This defense must be
rejected because the Board, in the Section 10(k) proceeding, held that
the applicability of Section 8(b) (4) (d) [sic] . . . extends to an attempt,
as here, to force the indirect assignment of work from employees of one employer
(Western) to employees of another (Fischbach or another electrical contractor).
I conclude that the Respondent engaged in a strike, and induced and encouraged
individuals to refuse to perform services for Fischbach, in violation of Section
8(b) (4) (i) (D). I conclude also that the Respondent threatened, coerced, and re-
strained Diesel in violation of Section 8(b) (4) (ii) (D).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices set forth above, occurring in connection with the opera-
tions of the employers described in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead and have led to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
2 There is no dispute that, at times material, to quote the wards of the Act, Western and
Telco were not "falling to conform to an order or certification of the Board determining
the bargaining representative for employees performing" the disputed work
3 The transcript at page 8, line 7, is hereby corrected by the substitution of "an electrical
contractor," for "a legal contractor."
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact, and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent and the CWA are labor organizations within the meaning of
the Act.
2. Western, Telco, Diesel , and Fischbach are engaged in commerce within the
meaning of the Act.
3. By engaging in, and by inducing and encouraging employees of Fischbach to
engage in, a strike and refusals in the course of employment to perform services, and
by threatening , coercing , and restraining Diesel, with an object of forcing or requiring
Telco and Western to assign work to employees in the Respondent rather than to
employees in CWA , the Respondent has engaged in unfair labor practices within
the meaning of Section 8(b) (4) (i ) and (ii ) (D) and Section 2(6) and (7 ) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I hereby recommend that the Respondent , Local 3,
International Brotherhood of Electrical Workers, AFL-CIO, its officers , agents,
representatives , successors , and assigns , shall:
1. Cease and desist from engaging in, and inducing or encouraging any individual
employed by Fischbach and Moore , Inc., or any other employer , to engage in, a strike
or a refusal in the course of his employment to perform any services ; and cease and
desist from threatening , coercing, or restraining Diesel Construction Company, Inc.,
or any other employer, where in either case an object thereof is to force or require
New York Telephone Company or Western Electric Company, Incorporated, to
assign , directly or indirectly , to employees represented by the Respondent the work
which employees of Western Electric are entitled to perform under Local Union No. 3,
International Brotherhood of Electrical Workers, AFL -CIO (Western Electric Coin-
pany, Incorporated ), 141 NLRB 888.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post in its offices and meeting halls, copies of the attached notice marked
"Appendix." 4 Copies of said notice, to be furnished by the Regional Director for
the Second Region, shall , after being duly signed by the Respondent 's representative,
be posted by the Respondent immediately upon receipt thereof, and be maintained
by it for at least 60 consecutive days thereafter , in conspicuous places, including all
places where notices to its members customarily are posted . Reasonable steps shall be
taken by the Respondent to ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Promptly after receipt of unsigned copies of said notice from the Regional
Director, return to him signed copies for posting by New York Telephone Company,
Western Electric Company, Incorporated , Diesel Construction Company, Inc., and
Fischbach and Moore , Inc., if those employers be willing, at all places where notices
to their respective employees customarily are posted.
(c) Notify said Regional Director , in writing , within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply herewith.5
4 If this Recommended Order should he adopted by the Board , the words "As Ordered
by" shall be substituted for "As Recommended by a Trial Examiner of" in the notice. In
the further event that the Board 's Order be enforced by a United States Court of Appeals,
the words "A Decree of the United States Court of Appeals , Enforcing an Order of" shall
be Inserted Immediately following "As Ordered by."
If this Recommended Order should be adopted by the Board , this provision shall be
modified to read: "Notify said Regional Director , in writing , within 10 days from the
date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL OUR MEMBERS , OFFICERS , AND AGENTS , TO ALL EMPLOYEES OF NEW
YORK TELEPHONE COMPANY, WESTERN ELECTRIC COMPANY , INCORPORATED , DIESEL
CONSTRUCTION COMPANY, INC., AND FISCHBACH AND MOORE, INC.
As recommended by a Trial Examiner of the National Labor Relations Board
and in order to conduct the business of Local 3 as required-by the National Labor
Relations Act, we notify you that:
SAVAGE ARMS CORPORATION 1323
WE WILL NOT engage in , or induce or encourage any individual employed by
Fischbach and Moore , Inc., or any other employer , to engage in, a strike or a
refusal in the course of his employment to perform any services with an object of
forcing or requiring New York Telephone Company or Western Electric Com-
pany to assign, directly or indirectly, to employees represented by Local 3 the
work which the Labor Board held that employees of Western Electric Company
are entitled to perform.
WE WILL NOT threaten , coerce, or restrain Diesel Construction Company, Inc.,
or any other employer , with an object as set forth above.
LOCAL 3, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If anyone has any questions concerning this notice or whether Local 3 is complying
with its provisions , he may communicate with the Board 's Regional Office, Fifth Floor,
Squibb Building , 745 Fifth Avenue , New York , New York , Telephone No. Plaza
1-5500.
Savage Arms Corporation and Office Employes International
Union, Local 228, AFL-CIO , Petitioner. Case No. 1-RC-322.
November 1, 1963
DECISION, ORDER, AND CLARIFICATION OF
CERTIFICATION
In May 1948, Office Employes International Union Local 228,
AFL-CIO (herein called the Union), was certified as the collective-
bargaining representative for employees in the following unit:
All office and clerical employees of the Savage Arms Corpora-
tion at Chicopee Falls, Massachusetts, excepting production and
maintenance employees, executives, confidential employees, pro-
fessional employees, guards, and supervisory employees, as de-
fined in the Act.
On May 6, 1963, the Union filed a motion to clarify bargaining
unit, contending that the job classification of secretary to the personnel
manager should be included in the bargaining unit and requesting
a hearing on the issues. On June 3,1963, the Employer filed an answer
in opposition to the Union's motion averring that the classification in
question has become a confidential job and should, therefore, appro-
priately be excluded from the unit. In addition, the Employer con-
tends that this dispute should be resolved by means of the grievance
and arbitration procedures provided in the parties' current labor
agreement rather than by the Board. On June 21, 1963, the Board
referred the matter to the Regional Director for the First Region for
the purpose of holding a hearing and receiving evidence on the issues
144 NLRB No. 128.