Local 41, Electrical Workers

National Labor Relations Board - Board DecisionsDec 14, 1966

162 N.L.R.B. 114 (N.L.R.B. 1966)

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL MEMBERS OF AUTOMOTIVE WORKERS & WAREHOUSEMEN, LOCAL No. 881, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT cause, or attempt to cause, Victor F. Whittlesea, d/b/a Whit- tiesea Blue Cab Company, or any other employer, except in accordance with Section 8(a)(3) of the said Act, to lay off, or otherwise deny employment to, or in any other manner discriminate against any employee in regard to his hire, tenure of employment, or any term or condition of employment. WE WILL NOT in any like or related manner restrain or coerce employees of Victor F. Whittlesea, d/b/a Whittlesea Blue Cab Company, or any other employer, in the exercise of any of the rights guaranteed employees by Section 7 of the said Act. WE WILL jointly and severally with Victor F. Whittlesea, d/b/a Whittlesea Blue Cab Company reimburse Warden Hazlett Shuman for any loss of pay he suffered as the result of discrimination against him. We have no objection to the continued employment of Warden Hazlett Shu- man by Victor F. Whittlesea, d/b/a Whittlesea Blue Cab Company. AUTOMOTIVE WORKERS & WAREHOUSEMEN, LOCAL No. 881, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, 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 members have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 215 West Seventh Street, Los Angeles, California, Telephone 688-5540. Local 41, International Brotherhood of Electrical Workers, AFL- CIO I and New York Telephone Company 2 and Communications Workers of America , AFL-CIO, and Its Local 1122.3 Case 3- CD-162. December 14. 1,966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, pursuant to charges filed under Section 8(b) (4) (D) of the Act. A hearing was held before Hearing Officer Jeremy V. Cohen on June 30 and July 1, 1966. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed. Briefs were filed by all the parties and have been duly considered. I Hereinafter sometimes referred to as TI3EW. 2 Hereinafter sometimes referred to as Telco. 3 Hereinafter sometimes referred to as CWA. 162 NLRB No. 16. LOCAL 41, ELECTRICAL WORKERS 115 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. Upon the entire record in this case, the Board makes the following findings : I. THE EDIPLOYER Telco is a New York corporation engaged in the business of pro- viding and installing local and long distance communications and related services as part of a nationwide telephone system. During the year 1965, which period is representative of its annual operations, Telco derived gross revenues in excess of $1 million for its communi- cation services between points within the State of New York and points in other States. The parties stipulated, and we find, that Telco is an employer engaged in commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. The parties further stipulated that Buffalo Motel Corporation, Edward J. Fuhrmann & Co., Inc., and Industrial Power and Light- ing Corporation, all described more fully below, together with Telco, constitute, individually and collectively, employers engaged in com- merce and in industries affecting commerce within the meaning of Sections 2(6) and (7) and 8 (b) (4) (D) of the Act. H. THE LABOR ORGANIZATIONS The parties also stipulated, and we find, that IBEW, CWVA, and their respective locals named above, are labor organizations within the meaning of the Act. III. THE DISPUTE A. Statement of facts The dispute herein involves work prerequisite to establishing telephone service under certain conditions. The disputed work is the placing or "pulling" of inside telephone cable or wire through con- duit from the building distribution terminal or PBX frame to loca- tions within buildings, if such buildings are serviced from a central office located in the city of Buffalo; if the building is new; and if the wire or cable is placed in conduit; and only if one of the following conditions also exists : (1) the cable exceeds 300 feet in length, or (2) the building is more than four stories high, or (3) more than 35 telephone stations are to be initially installed. About 1930, an oral agreement called the "status quo agreement" was entered into between IBEW and Telco, by the terms of which wire-pulling work in the circumstances set forth above was assigned 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to contractors whose employees were members of IBEW. From that time until the instant dispute, the agreement has provided the basis for a consistent pattern of such assignments, while identical work under all other circumstances was performed by Telco's own employ- ees represented more recently by CWA, and previously by a predeces- sor of CWA. The identical work thus performed by Telco's own, CWA-represented, employees constitutes 96 to 97 percent of such work in the Company's Buffalo area and all of the work throughout the remainder of New York State outside of New York City. IBEW has never represented Telco employees. All parties agree that the "status quo agreement" calls for subcon- tracting of the work in dispute to contractors who would assign such work to employees represented by the Respondent. The parties fur- ther agree that Telco has acted in conformity with the "status quo agreement" from its inception until the present dispute. The instant dispute began when Telco assigned the work to its own employees represented by CWA in conformity with the general practice in cases not covered by the "status quo agreement," in conformity with changes in assignment elsewhere in the State of New York in analo- gous situations, and because of claimed economic advantages. This assignment of work occurred in April 1966 in connection with the construction of a motel, referred to as a Holiday Inn, of which Buffalo Motel Corporation is the lessee and operator. Fuhrmann Co., Inc., was the general contractor constructing the motel, and Industrial Power and Lighting Corporation, whose employees are represented by the Respondent, IBEW, was engaged by Fuhrmann to perform the electrical contracting. Telco and CAVA allege that on April 18, 1966, the first day that Telco employees began to perform the disputed work, Schlemmer, an IBEW agent. threatened Carrmpofelice, Fuhrmann's job superin- tendent, that the Respondent would picket the jobsite if Respondent's members were not assigned the disputed work. This threat was made in the presence of Wittman, a foreman employed by Industrial, and Foley, an employee of Industrial and Respondent's job steward. Telco"s employees were thereupon removed from the project. Schlem- mer allegedly repeated his threats to Kelly, Telco's district plant superintendent., and Blum, manager of the motel, on April 19 and 26. Telco employees returned to the jobsite about May 9, after the instant charge had been filed, and completed the project. B. Contentions of the parties While not contesting the above allegations made by Telco and CWA, the Respondent contends that the evidence is insufficient to show that it has violated Section 8(b) (4) (D) of the Act. The LOCAL X11, ELECTRICAL WORKERS 117 Respondent further contends that, if the notice of hearing is not quashed, the disputed work should be assigned to contractors employ- ing its members. It relies primarily on the "status quo agreement" and the resultant practice of assigning such work to individuals it represents, and claims that various other factors favor assigning the work to employees represented by it. Telco and CWA, on the other hand, contend that the "status quo agreement" was entered into because of IBEW coercion, and that it is obsolete in that it reflects conditions no longer present. They fur- ther contend that an assignment to IBEW-represented employees would fly in the face of the more general practice reflected in the Buffalo area and in the industry more generally. They also main- tain that utilization of Telco's own employees represented by CWA is more efficient and less costly; that such employees are better able to perform the work because of their ability to integrate the disputed function into the entire work load which they can simultaneously perform; that the MA-represented employees of Telco can work with less supervision because of their familiarity with the symbols and diagrams used by Telco; and, finally, that the work in dispute is more commensurate with the training and abilities of such employ- ees than with those of the more highly skilled employees represented by IBEW. C. Applicability of the statute The Board must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) of the Act was violated before it may proceed with a determination of dispute pursuant to Section 10 (k) of the Act. The record reveals that Schlemmer, an agent of the Respondent, threatened to picket the Holiday Inn Motel construc- tion project if Telco's C«WA employees continued to perform the work :in issue and if such work was not assigned to IBMV- represented employees. We find that there is .reasonable cause to believe, that Section 8(b) (4) (D) has been violated, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. D. illerrits o l the dispute The work in dispute, the pulling of wire through conduit under the circumstances enumerated above, involves a minimum of skill and training. It involves at most, and then only on occasion, the use of a "fish wire" which is inserted into the conduit to draw the wire or cable through the conduit. The wire or cable which is pulled is not connected to any power source,, and both that connection and all other electrical work on the system is performed by Telco installers represented by CWA. The work in issue is called "bull work," a term apparently reserved within the industry for the most unskilled 11S DECISIONS OF NATIONAL LABOR RELATIONS BOARD tasks. Telco's installers, who are not required to be more than high school graduates, are expected to be able to perform this function after a few hours on the job. As noted above, the parties stipulated that, since about 1930, there has been a practice of assigning such pulling of cable or wire through conduits to contractors employing IBEW members, only if the build- ing is serviced from a central office located within the city of Buffalo; and only if the building is new; and only if the wire or cable is placed in conduit; and only if one of the following conditions exists: (1) the cable exceeds 300 feet in length, or (2) the building is more than 4 stories high, or (3) more than 35 telephone stations are to be initially installed. Under all other circumstances, Telco installers (and, it appears, linemen) represented by CtiWTA perform the identi- cal functions. As has been stated, Telco's past practice under the "status quo agreement" would call for the assignment of the disputed work to IBEW contractors. As the Company's past practice is one of the factors which we consider in making a determination under Section 10(k), such practice would favor the contentions of IBEW herein. In weighing the significance of this factor, however, we note that, pursuant to the "status quo agreement," only 3 to 4 percent of wire- pulling work has been assigned to contractors employing IBEW members in buildings serviced by the six central offices located within the city of Buffalo. The remaining 96 to 97 percent of such work falls outside the special conditions of the "status quo agreement" and is, by practice, assigned to CWA-represented Telco employees. More- over, all wire-pulling work serviced by the 74 central offices outside the city of Buffalo, but in the same company area, is performed by such Telco employees. It further appears from the record that all such work performed throughout upstate New York and on Long Island is performed by Telco employees represented by CWA. Not only is the practice whereby Telco awarded work to contrac- tors employing members of IBEW a narrow exception to its general practice of awarding work to its own employees represented by CWA, but the factors governing that exception relate, not to the nature of the work being performed or other factors normally given weight by the Board, but to the general character of the construction involved. In the circumstances of this case, we shall not give control- ling --eight to that practice.4 As stated above, the work in dispute is simple in nature and requires little skill or experience. Indeed, to require Telco to utilize * Local 25, International Brotherhood of Electrical Workers , AFL-CIO ( DTew York Tele- phone Company), 152 NLRB 723 , at 729 , footnote 10. LOCAL 41, ELECTRICAL WORKERS 119 the services of journeymen electricians to perform such services appears to represent an obvious misapplication of skills.5 Further- more, when the work is assigned to independent contractors, both an IBEW-represented crew is required to perform the pulling function and a separate crew of Telco employees to perform the integrated tasks of extending the wire in exposed state and making all connec- tions to the power source at one end and to the instruments them- seh-es at the other. When the pulling work in dispute is performed by CWA-represented installers, on the other hand, all functions are performed by one crew as they became necessary in a continuous operation. It is also undisputed that, due to Telco's use of special symbols and diagrams which are known by its installers, a Telco foreman is required to be present with IBEW-represented crews in order to explain the meaning of the symbols and diagrams. Finally, the Company asserts, without contradiction, that its existing force of installers is able to absorb the disputed work on all contemplated projects without requiring either new hires or overtime. For all these reasons, we find that assignment of the disputed work to Telco employees results in greater efficiency and economy than would the utilization of electricians for that purpose.6 In 1961, and again in 1964, the Board certified CWA as collective- bargaining representative of all Telco plant employees. The current collective-bargaining agreement between these parties covers all such employees, including installers (and linemen) who have been assigned the disputed work by Telco. IBEW has no agreement with Telco, but does have an agreement with the Buffalo Chapter of the National Electrical Contractors Association (NECA), which is silent concerning the type of work in dispute herein. We find, therefore, that Telco's assignment of the work is consistent with the Board certification of CWA as representative of Telco's employees and with Telco's collective-bargaining agreement with CWA. We further find that such assignment is not inconsistent with the NECA-IBEW contract. Weighing the factors relied upon by Telco and CWA on the one hand against those cited by IBEW on the other, we conclude that the former outweigh the latter. As Telco uses its own employees to perform such work throughout most of New York State, as Telco has now assigned such work to its own employees in the area covered by the instant proceeding, as the performance of such work by Telco 6 We note in this regard that the record reveals the rate of pay for IBEW-represented employees is substantially higher than that paid to employees represented by CWA. Work of the type in issue has comprised less than a thousand hours a year for the last several years, and the increasing use of exposed wire in place of conduit will require even less such work in the future . Thus the potential loss of work for electricians represented by IBEW is minimal in nature. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees is more efficient and economical than utilization of electri- cians, as Telco employees are sufficiently skilled to perform the work, and as the assignment is consistent with the Board certification and with the terms of the collective-bargainng agreement between Telco and CWA, we shall determine the dispute in favor of Telco employ- ees represented by CWA. In making this determination, we are awarding the controverted work to Telco employees represented by CWA, and not to CWA or its members. Accordingly we find that IBEW was not, and is not, entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require Telco to assign the disputed work to its members, rather than to Telco employees represented by CWA.7 Upon the basis of the foregoing and the entire record in the case, and pursuant to Section 10(k) of the Act, the Board makes the following : DETERMINATION OF DISPUTE A. Employees of the New York Telephone Company, currently represented by Local 1122, Communications Workers of America, AFL-CIO, are entitled to perform the following work : Placing or "pulling" of inside telephone cable or wire through conduit from the building distribution terminal or PBX frame to locations within buildings where such buildings are serviced from a central office located in the city of Buffalo, if the building is new; the wire or cable is placed in conduit; and one of the following con- ditions also exists: (1) the cable exceeds 300 feet in length, or (2) the building is more than 4 stories high, or (3) more than 35 telephone stations,are to be initially installed. B. Local 41, 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 the New York Telephone Company to ,assign the above-described work to electricians who are currently rep- resented by Local 41, International Brotherhood of Electrical Workers, AFL-CIO. C. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 41, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 3, in writing, whether or not it will refrain from forcing or requir- ing New York Telephone Company to assign the work in dispute to its members, rather than to employees of New York Telephone Com- pany represented by Local 1122, Communications Workers of Amer- ica, AFL-CIO. 7 Local 25 , International Brotherhood of Electrical Workers , AFL-CIO, footnote 4, supra; Communications Workers of America, Local 1104 , AFL-CIO ( Bond Electric Company), 146 NLRB 388. GERBER PRODUCTS CO. 121 MEMBER FANNING, dissenting : For the reasons set forth in my dissenting opinion in Local 25, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 152 NLRB 723, I would award the work in question to electricians who are employed by independent electri- cal contractors and represented by the IBEW. Gerber Products Company and Lodge 260 , International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, Peti- tioner. Case 26-RC-2749. December 14,1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Edward E. Carrol. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Employer is engaged in a cooking and canning operation in Fort Smith, Arkansas. Petitioner seeks to represent a unit com- prised of all maintenance employees excluding office clerical employ- ees, professional employees, guards, watchmen, and supervisors. Employer contends that the smallest unit which the Board may find appropriate consists of all production and maintenance employees. There is no history of collective bargaining at the Fort Smith plant.' 'In 1964 the Food Handlers Local No. 425, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, petitioned for a separate unit of warehouse employees at the Fort Smith plant . The Regional Director in a decision dated March 6, 1964 , found a separate warehouse unit to be inappropriate. 162 NLRB No. 14.