Local 4, Int'l Brotherhood of Electrical Workers

National Labor Relations Board - Board DecisionsAug 28, 1962

138 N.L.R.B. 335 (N.L.R.B. 1962)

LOCAL 4, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 335 persuasion , I am compelled to find that Smith's conduct in this regard was not in violation of Section 8 (a)( 1) of the Act.16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged and refused to reinstate Delbert Bishop, I will recommend that the Respondent be ordered to offer him im- mediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered because of the discrimination against him by the payment to him of a sum of money equal to the amount he nor- mally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period, with backpay com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289, 291-294. In view of the nature of the unfair labor practices committed the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to their employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discouraging membership in a labor organization through discrimination in employment, and by interfering with, restraining, and coercing employees in the ex- ercise of their rights under the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. (Recommendations omitted from publication.] 1E Cadre Pndustries Corporation, 124 NLRB 278, the only Board case cited by the General Counsel on this point, is factually distinguishable from the instant case There, the basis for the 8(a) (1) violation found by the Board was company ,nttimidation of an employee for the purposes of obtaining an affidavit which he had submitted to the Board Local 4, International Brotherhood of Electrical Workers, AFL- CIO and The Pulitzer Publishing Company. Case No. 14-CD- 100. August 28, 1961 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act, following a charge filed on April 29, 1960, by the Pulitzer Publishing Company, hereinafter referred to as the Company, alleging that Local 4, Inter- 138 NLRB No. 46. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD national Brotherhood of Electrical Workers, hereinafter referred to as the IBEW or the Respondent, had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b) (4) (i) (D) of the Act. The charge alleges that the IBEW en- couraged the Company's employees to engage in a strike with the ob- ject of forcing the Company to assign certain work to members of the IBEW rather than to employees who are members of Local 2, Ameri- can Federation of Musicians, hereinafter called the Musicians, or of Local 47, St. Louis Newspaper Guild, hereinafter called the Guild. A hearing was held before Howard W. Solomon, hearing officer, on June 16, 23, and 24, 1960, at St. Louis, Missouri. All parties partici- pated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. On December 15, 1960, the Board issued a Decision and Determina- tion of Dispute in which it ruled against the contentions of the Re- spondent.' Thereafter, on July 31, 1961, the Company filed a Motion for Re- consideration of Decision and Determination, in which it also requested that the hearing be reopened on the ground that the Board had not complied with the mandate of the United States Supreme Court in N.L.R.B. v. Radio d Television Broadcast Engineers Union Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S. 573, herein called the CBS decision. By order dated February 28, 1962, the Board granted this motion, set aside its original Decision and Determination of Dispute, and remanded the case to the Regional Director to conduct a further hearing for the purpose of receiving evidence to facilitate determina- tion of the dispute in accordance with the principles set out in the CBS decision. A further hearing upon due notice to all the parties was held before Joseph H. Solien, hearing officer, on May 14, 1962. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence. The Board has reviewed the rulings of the hearing officers made at the hear- ings and finds that they are free from prejudicial error. Such rulings are hereby affirmed. All parties filed briefs with the Board. Upon the entire record in this case, the Board makes the following findings : 1. The Company is a Missouri corporation which is engaged in com- merce within the meaning of the Act. 2. The IBE1\T, the Guild, and the Musicians are labor organizations within the meaning of the Act, each respectively representing em- ployees of the Company. 3. The dispute : 1129 NLRB 958. LOCAL 4, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 337 A. The disputed work assignment The Company publishes the St. Louis Post Dispatch, a daily news- paper, prints the St. Louis Globe-Democrat, and owns and operates television station KSD-TV, and radio station KSD-AM. The dispute before us arose in connection with its television and radio station op- erations where it employs broadcasting engineers and projectionists represented by the IBEtiV, turntable operators and a staff musician represented by the Musicians, and continuity checkers and transcrip- tion record clerks represented by the Guild. Each of these three unions has a current collective-bargaining agreement with the Employer. On about March 1, 1960, the Company acquired for its television operations magnetic tape equipment known as the Collins unit, with the object of using it in,place of the turntable processes previously utilized for making, "dubbing" and playing back recordings of audio (voice, sound, or music) material. The Collins unit is a compact piece of machinery, about 2 feet long, 1 foot wide, and 11/2 feet in height? On or about March 15, 1960, the Company began to use the Collins equipment for the purpose of transferring to tapes, material con- tained on previously recorded discs which it then had on file in its transcription library, with the ultimate object of establishing a new library, with tapes replacing the discs. It assigned to the engineers represented by the IBEW all of the, tasks involved in actual operation of the Collins unit both for tape, recording and tape play-back "airing" process. This work included the task of insertion of the tapes in the unit, removing them there- after, and returning them to a carrying case used to transport such tapes to and from the music library. It assigned to continuity check- ers and transcription clerks represented by the Guild the tasks in- volved in ascertaining "spots" in the sections of the discs involved in the transfer process to be "taped" or recorded, in making and keep- ing records of the cartridges containing either these "taped" recordings, or those newly made as "original" recordings, and in as- signing to each a control number or index tab. It assigned to turn- table operators and the staff musician, represented by the Musicians, the tasks involved in selecting and "pulling" from the music library the discs or tapes to be "aired" or broadcast in whole or in part on particular programs, in placing them in the carrying case and trans- 2 The unit utilizes cartridges containing magnetic tape and the audio or voice is re- corded on the tape within the cartridge The cartridges are inserted in a slot to record or play back the audio . As the cartridge is inserted in the proper place it operates a switch, which is an interlock that will allow the machine to operate when a button is pushed. It also operates a circuit which turns on a light indicating that the machine is ready for use. If the cartridge is not properly inserted to engage the mechanism, the equipment will not operate when the button is pushed. .338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -porting them to the control room where the Collins equipment was located, and in taking the tapes from the control room to the music library in the carrying case and then filing them again in their proper -slots in the library for future use. On April 25, 1960, the Company's office manager, Schomburg, ad- vised Barnett, business manager of the IBEW local, of the above task assignments. Barnett voiced no objection at that time. However, the IBEW later took the position that the employees it represented were entitled to perform not only the mechanical and other work as- signed to them but also those tasks the Company had assigned to the employees represented by the Musicians and the Guild which involved the work of indexing, library-filing, and recordkeeping of the Collins tapes. This is the work disputed here. IBEW agents advised the Company of this position and threatened that its members would not operate the Collins equipment unless the Company assigned to them this additional work as requested. On April 26, 1960, the IBEW posted a notice to this effect on the bulletin board. The Company filed a charge on April 29, 1960, and has since refused to alter its assignments. Although no work stoppage has occurred, the IBEW persists in its demands. B. Contentions of the parties The IBEW bases its claim to the disputed work on an interpreta- tion of its certification and contracts in light of the practice of the Company in assigning to the broadcast engineers, whom the IBEW represents, the allegedly similar incidental work in connection with .audio reel tapes. The Company, the Musicians, and the Guild dispute these factual assertions and ask the Board to affirm the Company's present assign- ments. In support of this position, they argue, variously, that the disputed work is almost identical to the library work which the em- ployees represented by the Musicians and the Guild have customarily been performing in connection with the filing, indexing, and record- keeping of the discs now being replaced by Collins tapes; that the terms of the bargaining contracts respectively held by the Musicians and the Guild justify the assignment; and that the assignments have been performed to the Company's satisfaction. C. Applicability of the statute The record before us establishes and we find that there is reasonable cause to believe that the Respondent engaged in activities proscribed by Section 8(b) (4) (i) (D) of the Act. It directly threatened a work stoppage to force the Company to assign the disputed work to broad- cast engineers,,,although the Company had assigned it to turntable LOCAL 4, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 339 operators, staff musicians, continuity checkers, and transcription record clerks. The IBEW originally moved to dismiss the proceeding on the grounds that the dispute was subject to arbitration, that the Company had refused to arbitrate, and that IBEW had filed suit under Section 301 to compel arbitration. The Federal District Court subsequently entered a summary judgment in favor of the Company and dismissed the suit. IBEW appealed from that judgment but later withdrew its appeal, thus making the judgment final. Therefore, IBEW's mo- tion to dismiss this proceeding is denied. Accordingly, we find that the dispute is properly before the Board for determination pursuant to Section 10(k) of the Act .3 D. Merits of the dispute As noted above, the IBEW seeks to justify its claim to the work on the basis of its certification and contract and the Company's past prac- tice in assigning audio reel tape work. It appears from the record, however, that the work in dispute is largely clerical in nature and does not require the exercise of any special skills. IBEW's certification was for a unit confided to technical employees, and employees han- dling records and transcriptions and "clerical" employees were spe- cifically excluded therefrom' Nor does any contract between IBEW and the Company, in unam- biguous terms, include the work of library filing, indexing, and record- keeping. Section I of Article II of the current contract reads as follows : SECTION I. Jurisdiction of this Agreement shall include all work in connection with the installation (except the installation of conduit and wires therein, the wiring of light circuits and the wiring of power circuits up to the final distribution panel), opera- tion, repair and maintenance of any and all types of radio broad- cast equipment including Amplitude Modulation, Frequency Modulation, Television, Facsimile, Audio equipment and any ap- paratus by means of which electricity is applied in the transmis- sion or transference, production, or reproduction of voice, music, sound, or vision, with or without ethereal aid, including the cut- ting of records, transcriptions, wire, film, slides, tape, video tape, or any other method of visual recording, and such other mechan- ical or electrical operations incident thereto, incl'adi'ng copying 3 See Truck Drivers Local Union No 375, International Brotherhood of Teamsters, etc (Service Transport Co ), 113 NLRB 452, 458, Local Union No 118, Sheet Metal Workers' International Association (Acoustz Engineering of Alabama, Inc.), 119 NLRB 157, 161 ; Retail Clerks International Association, AFL-CIO ( Food Employers Council, Inc ), 125 NLRB 984 4 The Pulitzer Publishing Company, 101 NLRB 1005 662353-63-vol 138-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and dubbing of slides, film and tape, splicing of film and tape, all types of projection, sound work, sound effects, and lighting. The above shall not be taken to include jurisdiction over the taking of motion pictures and recording of sound thereon, except the record- ing of sound at the studios of the employer.5 The above contractual language does not refer to the work in question. To the contrary, both the fact that such work is not "mechanical or electrical operation incident" to the "installation . . . operation, re- pair and maintenance" of Collins unit equipment and that the em- ployees covered by the contract and the quoted language perform es- sentially technical work, tends to support the view that the work of library-filing, indexing, and recordkeeping is excluded from the IBEW contract with the Company. At the original hearing, Respondent offered evidence intended to show an alleged "area practice" to support its claims by virtue of the fact that at two other radio stations in the St. Louis area similar work had been assigned to broadcast engineers. This evidence was errone- ously excluded by the hearing officer. At the reopened hearing, how- ever, although Respondent was given opportunity to introduce this evidence, together with any additional supporting testimony it might have, no further information was offered. In these circumstances, even assuming that similar work was assigned by other employers to engineers at two stations in the St. Louis area, we do not think that this fact alone compels an award of the disputed work here to the engineers. Regarding the Company's past practices with respect to audio reel tapes, such work, which included the making and keeping of work- sheets indicating the description of the program taped, the length of the tape, and other similar identifying symbols, was assigned to en- gineers, but these tapes were used only for special purposes and were generally erased after one use, so that, unlike the Collins tapes, there was no permanent indexing of them and no permanent library file was made of them. Turning to the position taken by the Company, Musicians, and the Guild, that the turntable operators, staff musicians, continuity check- ers, and transcription record clerks were properly assigned the work in dispute, and that the Board should affirm the assignment, these par- ties rely in part upon their collective-bargaining contracts. The Musicians' contract covers the "employment of Turntable Operators as they are generally known at the employer's premises, whose work consists of handling and playing all music which is recorded on ace- tate or Vinylite discs, or similar discs and incidental paperwork in connection therewith." The contract between the Guild and the Coin- 6 The italicized words in the above are the only changes made in the contract language covering Local 4's work jurisdiction from that contained in the previous contract LOCAL 4, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 341 pany embraces radio and television continuity checkers, and radio and television transcription clerks. For many years, employees in these classifications have handled the music and transcription library work and the work of recordkeeping and indexing in connection with the preparation of program material. The clerical work required by the use of Collins tape cartridges appears to be of the type performed on other broadcast materials by the continuity checkers and transcrip- tion record clerk. And the turntable operators and staff musician, who are now responsible for the library filing of Collins tape car- tr^dges, have long filed the records in the music and transcription li- brary which the Collins tape cartridges are designed to replace, It seems clear from the foregoing that the nature of the work in dispute does not justify awarding it to the broadcast engineers; nor is IBEW's claim to the work established on the basis of its certifica- tion or collective-bargaining contract with the Company or the Com- pany's past practice in the assignment of work. On the other hand, the work tasks in dispute resemble the library work which turntable operators, the staff musician, continuity checkers, and the transcrip- tion record clerk have performed for many years. The Company's assignment to these employees therefore appears to have been in con- formity with past practices and consistent with the practical appli- cation and administration of the contracts respectively involved. Ex- perience under the assignments made by the Company indicates that the Company's division of this work, which directly relates to the effective functioning of its operation, has worked out satisfactorily. On the basis of these considerations, and the record as a whole, we are persuaded that we should determine the work dispute by as- signing the work tasks in conformity with the assignments made by the Company.6 The present determination is limited to the par- ticular controversy which gave rise to these proceedings. In making this determination, we are assigning the disputed work to employees described below who are represented by the Musicians or the Guild, but not to the Musicians or to the Guild, or to their members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10(k) of the Act: 1. Employees engaged as turntable operators and staff musicians, currently represented by Local 2, American Federation of Musicians, are entitled to perform all filing work associated with Collins tape cartridges at the Employer's KSD and KSD-TV radio and television eSee New York Mailers' Union No 6, Inter national Typographical Union, AFL-CIO, at at. (The New York. Times Cowpony), 137 NLRB 665 ; International Association of Machinists, Lodge No 1743, AFL-CIO (J. A Jones Construction Company), 135 NLRB 1402. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD station in St. Louis, Missouri. Employees engaged as radio and television continuity checkers and transcription record clerks, cur- rently represented by St. Louis Newspaper Guild, Local 47, American Newspaper Guild, AFL-CIO, are entitled to perform all indexing and clerical work associated with such cartridges at the Employer's aforesaid station. Accordingly, Local 4, International Brotherhood of Electrical Workers, AFL-CIO, is not entitled to force or require the Employer by means proscribed by Section 8(b) (4) (i) (D) of the Act to assign the above-mentioned disputed work to engineers and projectionists who are currently represented by it. 2. Within 10 days from the date of this Decision-and Determina- tion of Dispute, Local 4, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for the Four- teenth Region, in writing, whether or not it will refrain from forcing or requiring the Employer by 'means proscribed by Section 8(b) (4) (i) (D) to assign the work in dispute to its members rather than to the employees currently represented by the Musicians and Guild. MEMBER FANNING took no part in the consideration of the above Decision and Determination of Dispute. Local 761, International Union of Electrical, Radio and Machine Workers (AFL-CIO) and General Electric Company, Appli- ance and Television Receiver Division. Case No. 9-CC-158. AugWt 28, 1962 SUPPLEMENTAL DECISION AND ORDER On June 8, 1959, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,' finding that the Respondent, Local 761, International Union of Electrical, Radio and Machine Workers (AFL-CIO), had engaged in certain conduct in violation of former Section 8(b) (4) (A) of the National Labor Rela- tions Act, as amended, and ordering it to cease and desist therefrom and to take certain affirmative action, set forth therein. Thereafter, on April 18, 1960, the United States Circuit Court of Appeals for the District of Columbia issued an Order enforcing the Board's Order 2 and, on May 18, 1960, entered a Decree enforcing the Order of the Board. On May 29, 1961, the United States Supreme Court reversed the Decree of the Court of Appeals and directed it to remand the case to the Board for the purpose of making further findings of fact.' 1123 NLRB 1547. 2 278 F 2d 282 3 366 U S. 667, 672 138 NLRB No. 38.