Local 501, IBEW

National Labor Relations Board - Board DecisionsAug 21, 1968

172 N.L.R.B. 1651 (N.L.R.B. 1968)

LOCAL 501, IBEW Local 501, International Brotherhood of Electrical Workers, AFL-CIO' and New York Telephone Company' and Communications Workers of America , AFL-CIO.' Case 2-CD-366 August 21, 1968 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS BROWN , JENKINS, AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, pur- suant to charges filed under Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Oscar Gellman on February 14, March 8, 11, and 15, and April 3 and 11, 1968. All parties appeared at the hearing and were afforded full apportunity 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 hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by all the parties and have been duly considered. 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 powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board makes the following findings: 1. THE EMPLOYER Telco is a New York corporation engaged in the business of providing and installing local and long distance communications and related services in New York State and in parts of Connecticut. Dur- ing the year 1967, which period is representative of its annual operations, Telco derived gross revenues in excess of $1 million for its communication ser- vices 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 ju- risdiction herein. II. THE LABOR ORGANIZATIONS The parties stipulated , and we find , that IBEW and CWA, named above , are labor organizations within the meaning of Section 2(5) of the Act. Hereinafter referred to as IBEW = Hereinafter referred to as Telco Hereinafter referred to as C W A III. THE DISPUTE A The Work in Issue 1651 The work in dispute here involves the pulling of feeder, house, and inside wiring cable into and within buildings, the attaching of house and inside wiring cable to walls; the placing of inside wiring; the fastening of terminal boxes to walls, and the bolting to floors of frames designed to support telephone equipment, where the particular job is new construction or construction involving a major alteration.' B. Background Prior to January 1968, the work in dispute was performed in the Westchester County, New York, and lower Fairfield County, Connecticut, areas by electrical contractors whose employees were mem- bers of IBEW Local No. 501. In mid-December 1967, W. Ricks Littell, an assistant vice president of Telco in charge of personnel relations, decided to discontinue the practice of subcontracting the work in dispute. In early January 1968, Robert Taylor, Telco assistant general manager for the Westchester area, who is in charge of the plant de- partment, implemented the decision not to subcon- tract the work, and thereafter said work was per- formed by Telco employees, members of CWA Local No. 1103. The following events transpired when Telco em- ployees attempted to perform the disputed work at various jobsites: 1. At the Imperial House Apartments jobsite, located in Portchester, Westchester County, New York, Bill Metcalf, a Local 501 shop steward, told Ross Rimicci, a supervising construction foreman for Telco, that the latter and his men would be al- lowed to place the feeder cable but no more. The job, in addition, involved placing a terminal box in the basement and running house cable. Metcalf then proceeded to the trailer of a Mr Sokolov, owner and general contractor, after which Sokolov told Rimicci that if Telco remained on the job 501 would walk off. 2. The Garden Development Apartments, located at Mount Kisco, Westchester County, New York, involved running house cable and lateral cable within the apartments. On January 23, 1968, McNamara, owner and contractor, told William King, the Telco service foreman, that the electri- cians had told him to get rid of the CWA people or 4 It appears , moreover, that IBEW does not contest the assignment of this work except when the job force is represented in its entirety by building trades labor organizations affiliated stth the AFL-CIO 172 NLRB No. 184 1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would leave the job as they had been in- structed to do by their delegate. 3. McClusky, a supervising construction foreman for Telco, testified that , on January 17, 1968, at the Jeffrey Park Apartments , Yonkers , Westchester County, New York, which job involved placing feeder cable in a trench , he was approached by the electrical foreman and the general contractor's su- perintendent , Shepis , and was told by the foreman that Respondent 's delegate had instructed the Local 501 people to leave the job unless Telco left. 4. Martirano , the construction superintendent for the general contractor at the Wartburg Orphans Farm School job, located at Mount Vernon, Westchester County, New York, testified that after Telco arrived to place a PBX console he was told by lorio , the electrical foreman , that if Telco con- tinued to work , he would call his delegate and that would mean a walkout by Local 501. 5. At the American Natural Fern Company job at Elmsford, Westchester County, New York, O'Toole, a Telco service foreman , was told by Matt Gasperini , the electrical foreman , that Local 501 had threatened to walk off the job if Telco didn't leave . This job involved pulling inside wiring cable, mounting backboards, and power units. C. 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 reasonable cause to believe that Section 8(b)(4)(D) has been violated. The charge herein alleges a violation of Section 8(b)(4)(i) and (ii )(D) of the Act. The record gives reasonable cause to believe that on several occa- sions, enumerated above , commencing on or about mid-January 1968, and continuing until on or about February 14, 1968, IBEW sought to induce and en- courage employees of Telco to engage in a strike, and threatened and coerced various persons en- gaged in an industry affecting commerce with work stoppages all for the purpose of causing Telco to as- sign the disputed work to Respondent's members. While much of the evidence relied on in this proceeding to show threats or coercion under Sec- tion 8(b)(4)(D) is heresay, we nevertheless find that there is reasonable cause to believe that viola- tions of Section 8(b)(4)(i) and (ii)(D) have oc- curred. Thus, the hearing under Section 10(k) is nonadversary in character, is conducted in the same way as a hearing in a representation proceed- ing, and the technical rules of evidence are not con- trolling s We find that the dispute is properly before the Board for determination pursuant to Section 10(k) of the Act. D. Contentions of the Parties In urging that the disputed work be assigned to employees they represent, Intervenor CWA argues that the evidence establishes that 96-99 percent of the work in dispute in the Westchester area has been and is presently performed by Telco em- ployees, that the 1-4 percent of the work per- formed by employees represented by Respondent is done in accordance with a "division of work guide" which was brought about and has been maintained by coercion; that the work in dispute requires a minimum of training and skill and does not require the skill of a journeyman electrician, that per- formance of the disputed work by electricians causes delay and increases Telco's cost of doing business ; and that Telco's employees can perform the disputed work in about half the time that it would take electricians; that the Employer, Telco, for reasons of efficiency and economy has assigned the disputed work to the employees represented by Intervenor. The Employer, Telco, argues that the disputed work should be assigned to its employees, members of CWA Local 1103. The Employer contends that the Board's decisions in the Nassau case,' in Bond Electric Co.,' in the Buffalo case," and in the Pan Am cases require that the work be assigned to its employees. The Employer further argues in support of its position that more than 90 percent of the work relating to installing PBX bases and more than 96 percent of the work relating to the installa- tion of feeder, house, and inside cables and ter- minal boxes, all in Westchester County, has been performed by Telco employees; that the work per- formed by Respondent' s members represents a nar- row exception to the general practice; that no con- tract requires assignment of such work to electri- cians ; that in the past Telco has freely changed the assignment of work covered by the "guide," that an assignment of the disputed work to Respondent's members would in effect create a closed shop, that 'See Bas Counties District Council of Carpenters and Joiners of America. AFL-CIO. 115 NLRB 1757, 1763 in 8 'Local 25, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company). 152 NLRB 723 'Communications Workers of America. Local 1104. AFL-CIO (Bond Electric Company). 146 NLRB 388 "Local 4/, International Brotherhood of Llectricul Workers. AFL-CIO (New York TelephoneCompan.) 162 NLRB 1 14 ' Local Union No 3. International Brotherhood of Electrical Workers. AFL-CIO ( Western Electric Conipans) 141 NLRB 888 LOCAL 501, IBEW the skills necessary to perform the disputed work are minimal and those of a journeyman electrician are not needed; that Telco employees can perform the disputed work more economically and more ef- ficiently than can those employed by independent contractors; and that Telco assigned the disputed work to its employees on the basis of economic and operational considerations. Respondent IBEW argues in support of its posi- tion that the disputed work should be assigned to its members; that its members have performed this disputed work for approximately 65 years in this geographic area; that the work in dispute is that performed in new buildings or in buildings undergo- ing major alterations and where the labor force is 100 percent building trades union, and this differs substantially for the purposes of Section 10(k) from functionally similar work performed by Telco em- ployees; that an assignment of the disputed work to Telco employees would result in a loss of jobs by Respondent's members; that Intervenor has acquiesced in the contracting out of the disputed work; that the CWA-Telco contract does not assign the work to Telco employees; and that Respon- dent's members perform the disputed work more economically and efficiently than do those of Tel- co. 1. Past practice In 1903, Telco entered into the first of five agree- ments, the last being dated 1917, whereby it was agreed with IBEW that members of the latter would perform the disputed work on jobs involving new construction or a major alteration and where all other employees on the project were represented by AFL or AFL-CIO building trades unions. The 1917 agreement was extended from year to year until 1935 when it was terminated by Local 3 of IBEW.10 Thereafter and continuing until January 1968, the work in dispute was assigned to outside electrical contractors pursuant to the division of work guide. We find that this past practice, one of the factors to be considered in making a determina- tion under Section 10(k), favors the contentions of IBEW. We note, however, that at all times the work performed by members of IBEW was determined not by the nature of the work being performed but Local 3 of the IBEW was Respondent 's predecessor " See Lo al25, supra, at 729, fn 10 1d Lrxal4/,.supra " The feeder cable, containing from 50 to 2,700 pairs of color-coded wires, connects the PBX, private branch exchange, to the Telco central of- fice The house cable runs vertically from the PBX to various locations in the building The inside wiring cable runs from the various house cable ter- minations to the various telephone locations. Inside wire differs from inside 1653 rather by the general character of the construction involved and the representation of the employees performing other aspects of the construction work." Thus, in 1967, a year representative of the past practice, from 3 to 4 percent of the work similar in nature to that involved herein was per- formed by members of IBEW. In these circum- stances, we do not give controlling weight to that practice.l2 2. Skills and training The work when performed by Telco employees is performed by installers and linemen. While many of these employees are skilled and highly paid it is clear that the work requires a minimum of training and skill. Thus, newly hired employees, who are preferred but not required to be high school gradu- ates, are given a 3-week training course out of which approximately 1 day is devoted to work in- volved here. Prior to the time when sufficient newly hired employees accumulate to constitute a class, they perform this work through on-the-job training. The bolting down of the PBX base, the placing of feeder cable, house cable, inside wiring cable and inside wire, which cables and wires represent the various links between the individual telephones13 and a Telco central office,14 and the installation of the terminal box,'5 involve the use of drills, socket wrenches, levels, screwdrivers, pliers, hammers, sta- ple guns, and wire straps. Neither the placing of the various cables and wires nor the installations of the PBX bases and the terminal boxes involves work with electricity. Telco employees in all instances terminate and connect the cables and wires. There is no evidence to show that the special knowledge or skill of an electrician or journeyman electrician is needed. We find that the Telco employees, as well as electricians, are qualified to perform the work. 3. Certifications and contracts In 1961, 1964, and 1967, the Board certified CWA as collective-bargaining representative of all Telco plant employees. The current collective-bar- gaining agreement between these parties covers all such employees, including the installers" and wiring cable only in the number of color-coded wire pairs involved, they have the same characteristics and functions " The Telco central office is the telephone building that houses the equipment that interconnects the telephones in a given community '" The terminal box (telephone box) is used to interconnect the various cables within the building '" Installers are primarily involved in the placing, interconnecting, test- ing, putting into service , and turning over to the customers of telephone equipment 1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD linemen" who have been assigned the disputed work by Telco. No Telco employees are represented by IBEW, and Telco has no collective- bargaining or other agreements with IBEW. We find that Telco's assignment of the work is con- sistent with the Board certification of CWA as representative of Telco's employees and with Tel- co's collective-bargaining agreement with CWA. 4. Efficiency and economy We further find that assignment of the disputed work of Telco employees results in greater efficien- cy and economy than would the utilization of elec- tricians for that purpose. Thus the record shows that installation of the PBX requires (I) laying out the floor of the telephone room from Telco blueprints, (2) drilling holes in the floor, (3) plac- ing bolts in the holes, and (4) bolting down the base. When the work is contracted out the electri- cians perform only the fourth function. Thereafter, Telco employees erect the uprights and attach the cable rack. With regard to placing feeder cable, when run underground, (1) a presurvey is per- formed following Telco blueprints, (2) the materi- als are transported to the jobsite, (3) the manhole is pumped dry, blown out, and tested for an explo- sive mixture, (4) the reel is set up and a dragwire attached thereto, and (5) the cable is pulled through the duct." When the work is contracted out the electricians perform only the fifth func- tion." Thereafter, and as in all cases of placing the various cables and wires involved herein, Telco em- ployees will terminate and connect the feeder ca- ble.20 From the above, it is clear that the contract- ing out of the work in dispute causes an interrup- tion in what is otherwise a continuous operation when performed by Telco employees. This neces- sarily results in delay and the various other problems inherent in attempting to coordinate two separate and independent work forces. The record further indicates that when the work is contracted out Telco foremen spend more time at the jobsite instructing as to the size, placement and pulling of the cable than when the work is per- " Linemen place poles and cables both on the poles and underground They are further responsible for connecting terminals to the cables i" The reel may be set up either on the outside or on the inside of the building, and, in both cases, a winch may he used if the cable is large "' When a winch is used and the work has been contracted out, the block which is attached to an inside wall will he attached by electricians who will thereafter guide the feeder cable into the building When the reel is placed inside the building it is set up by electricians We find that these variations have no substantive effect upon our decision "' The above discussion of the work process regarding the PBX and feeder table is illustrative of the general procedure involved in performing the disputed work Discussion of the procedure in running feeder cable formed by Telco employees.21 In addition, when the work is contracted out any changes in telephone lo- cations necessitating changes in the locations of house cable must be processed through a Telco su- pervisor whereas, when Telco employees perform the work, Telco linemen have authority to make reasonable changes in the locations. 5. The Employer's assignment of the disputed work The decision to assign the disputed work to Telco employees was made in December 1967, by W. Ricks Littell, assistant vice president in charge of personnel relations. The decision was based on the considerations that most of the work involved was being performed by Telco employees, that Telco employees were qualified to perform the work, that the work was telephone work, i.e., it did not involve working with hot wires, and that, in the Employer's view, it would cost less to perform the work with Telco employees. Weighing the above factors, we conclude that they favor an assignment of the disputed work to Telco employees.22 Considering that Telco em- ployees perform a great majority of the disputed work in the geographical area wherein the present dispute arose; that Telco has assigned the disputed work to its employees in that geographical area; that the performance of such work by Telco em- ployees is more efficient and economical than utilization of electricians; that Telco employees are sufficiently skilled to perform the work; and that the assignment is consistent with the Board certifi- cation and with the terms of the collective-bargain- ing agreement between Telco and CWA; we shall determine the dispute in favor of Telco employees represented by CWA. Our present determination is limited to the controversy which gave rise to this proceeding. 23 In making this determination, we are awarding the controverted work to Telco em- ployees 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 aerially, in placing house cable , inside wiring cable and inside wire, and in installing the terminal box would be cumulative ti The record is clear, however, that when the work is contracted out, as when performed by Telco employees , Telco foremen do not remain at the jobsite for the duration of the work = Cf N L R B v Lot al 25, International Brotherhood of Llet traal Wor- Aet %, AFL-CIO, 396 F 2d 591 (C A 2) d1 Our determination herein covers the assignment of the work in issue in the area comprising Westchester County, New York , and lower Fairfield County, Connecticut, which is the area served by Telco to the extent that the geographical jurisdiction of Communications Workers of America, Local 1 1113, AFL-CIO, and Local 501, International Brotherhood of Elec- trical Workers , AFL-CIO, coincide LOCAL 501, IBEW assign the disputed work to its members, rather than to Telco employees represented by CWA. 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 case, the National Labor Relations Board hereby makes the following determination of dispute. A. Employees of the New York Telephone Com- pany, currently represented by Communications Workers of America, AFL-CIO , are entitled to per- form the following work: All work involving the pulling of feeder , house, and inside wiring cable into and within buildings , attaching of house and inside wiring cable to walls , the placing of inside wiring; the fastening of terminal boxes to walls and the bolting to floors of frames designed to support 1655 telephone equipment where the particular job is new construction or construction involving a major alteration. B. Local 501, International Brotherhood of Elec- trical 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 Com- pany to assign the above -described work to electri- cians, who are currently represented by Local 501, International Brotherhood of Electrical Workers, AFL-CIO. C. Within 10 days from the date of this Decision and Determination of Dispute , Local 501, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 2, in writing , whether or not it will refrain from forcing or requiring New York Telephone Company to assign the work in dispute to its mem- bers, rather than to employees of New York Telephone Company represented by Communica- tions Workers of America , AFL-CIO.