Local No. 3. IBEW

National Labor Relations Board - Board DecisionsAug 20, 1968

172 N.L.R.B. 1645 (N.L.R.B. 1968)

LOCAL NO . 3. IBEW Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO and The Western Union Telegraph Company and Communications Workers of America , AFL-CIO. Case 2-CD-364 August 20, 1968 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , follow- ing charges filed by The Western Union Telegraph Company , hereinafter called Western Union, against Local Union No. 3, International Brother- hood of Electrical Workers, AFL-CIO , hereinafter called Local 3, and Local 608, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, hereinafter called Carpenters .' The charges alleged that the Respondent Unions had violated Section 8(b)(4)(i) and (ii)(D) by inducing individuals to engage in a strike or refusal to work , with an object of forcing or requiring Western Union to assign certain work to their members rather than members of the Communications Workers of America, hereinafter called CWA. A hearing was held at New York, New York, on March 12, April 22, and 25, 1968 , before Hearing Officer Martin S . Arlook. Western Union , Local 3, and CWA appeared at the hearing and were afforded full opportunity to be heard, to examine witnesses , and to adduce evidence bearing on the issues . Carpenters made no appearance at the hearing. 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. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed . Thereafter, Western Union, CWA, and Local 3, filed briefs. Upon the entire record in this case , the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Western Union is a New York corporation with its headquarters in New York City where it is en- gaged in providing communications services by telegraph as part of a nationwide system , doing a gross annual business in excess of $1 million, a sub- ' Pursuant to a stipulation , the Regional Director, by order dated April 25, 1968, dismissed the proceeding insofar as it related to Local 608, United Brotherhood of Carpenters and Joiners of America, AFL-CIO 1645 stantial portion of which is received for telegraph services between New York State and other States. Upon the basis of the facts stipulated to by the parties, we find that The Western Union Telegraph Company is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert ju- risdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find , that Local 3 and CWA are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE DISPUTE A. Background This dispute arises out of Western Union's renovation of the fourth, fifth, sixth, seventh, and eighth floors of its headquarters building at 60 Hud- son Street, New York, New York, pursuant to a sublease agreement with the General Services Ad- ministration, hereinafter called GSA. Western Union signed an agreement in October 1967 to sublease office space to GSA. Such office space is to be occupied by the Department of Defense. The renovation work included tiling floors, dropping ceiling, air conditioning, and lighting. Nearly two- thirds of the renovation work was contracted out by Western Union to various contractors in the city of New York. Western Union awarded the work of providing electric power for the air-conditioning system to L. K. Comstock, Inc., hereinafter called Comstock. Another contractor, Lowy and Don- nath, Inc., hereinafter called Lowy, was awarded the work of providing electric power for the com- munications and computer room, including power for the air conditioning in the computer room. Local 3 was the representative of the employees of the aforementioned contractors. Western Union also assigned certain electrical work, in dispute herein, to its employees who are represented by CWA. The disputed work involves branch circuit elec- trical work incidental to and in connection with the installation of lighting fixtures and conventional wall outlets on five floors of the building at 60 Hud- son Street, New York City, headquarters of Western Union. The work includes the pulling of 172 NLRB No. 182 1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wires from panel boxes located within the building in connection with such installations. CWA was certified by the Board on April 25, 1966, as the representative of Western Union's em- ployees in the metropolitan division bargaining unit. This unit includes approximately 3,300 em- ployees in four major departments designated as technical facilities, commercial traffic and comp- trollers, and production personnel and clericals. Only the equipmentman construction classification covered by this unit is pertinent herein. Western Union and CWA are parties to a contract beginning June 1, 1966, and expiring May 31, 1968. The con- tract covers the certified unit . Although Local 3 has contracts with Comstock and Lowy, the parties stipulated that Local 3 has no contractual relation- ship with Western Union and it has never been cer- tified to represent Western Union employees in New York City. The evidence discloses that Western Union fol- lowed its customary procedure and consulted CWA before it contracted out the work herein. Western Union called Jacobson, the president of Local 1177, CWA, to request his presence at a December 7, 1967, meeting. At that meeting, Brown, area director of employee relations for Western Union, discussed the division of the contemplated work, in- cluding the work in dispute herein, and the availa- bility as well as the ability of CWA members to per- form the proposed work. CWA and Western Union agreed on the type and amount of renovation work to be contracted out to independent contractors, after it was established that CWA did not have the classifications to perform all of the work at 60 Hud- son Street. Comstock started work on the air-condi- tioning system during December 1967. Knudsen, who was foreman for Comstock and a member of Local 3, called business representative Lombardi to complain that some electrical work was being done by people who were not under contract with Local 3 On January 2, 1968, Lombardi visited the jobsite and discussed the disputed work with Knudsen. In early January, Lombardi met with Jacobson to discuss the work being performed by CWA mem- bers Jacobson informed Lombardi that he would leave his men there as long as Western Union as- signed the work to them. On January 4, 1968, Lombardi, and other trades union representatives he had summoned, met with Brown. Lombardi informed Brown that the men working for Comstock and Lowy did not want to work on the job because they were working along- An order granting temporary injunction pursuant to Section 10(1) is- sued February 1, 1968 McLeod v Local 3, IBEIV, 67 LRRM 2464 (D C N Y ) (January 27, 1968) The parties stipulated that the entire side men that were undermining their standard of living. There was testimony that O'Connor of the Carpenters told Brown at the January 4 meeting that he would take his people off the job and would picket the building if Western Union continued to assign certain work to its employees. Lombardi stated that he was in agreement with O'Connor's course of action. Brown asked for an adjournment and the parties agreed to meet again on January 10. At the January 10 meeting, Brown notified Lom- bardi and the other trades union representatives that the disputed work would remain with CWA. Lombardi responded to Brown's inquiry concerning any forthcoming action contemplated by Local 3, by stating that Local 3 had made known on January 4, its position as to what might happen if Western Union continued to assign the disputed work to its employees. Among the reasons given by Local 3 members for their refusal to work was the fact that CWA members at the project were not meeting Local 3 wage rates. Although work continued without incident throughout the day of January 10, work was discontinued by the contractors on the five floors of the Western Union building com- mencing January 11, 1968, and continuing until the date of the injunction on February 1, 1968.2 The employees represented by Local 3 returned to work on that date and work has continued without inter- ruption. B. The 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)(i )( D) has been violated. The charges herein allege a violation of Section 8(b)(4)(i) and ( ii)(D) of the Act. The record shows that at the January 4, 1968 , meeting , Lombardi and other building trades representatives threatened Western Union Representative Brown that the con- tractors ' employees represented by Local 3 would not work alongside Western Union employees represented by CWA, and that they would put a picket line around the building . At a subsequent meeting on January 10, Lombardi threatened the Employer by reiterating that Western Union was aware of Local 3's position as set forth at the January 4 meeting as to what might happen if Western Union continued to assign the disputed work to Western Union employees . On the basis of transcript of the Section 10(1) proceeding be made a part of the record in this proceeding LOCAL NO. 3, IBEW 1647 the entire record, we conclude that there is reasonable cause to believe that a violation of Sec- tion 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. C. The Contentions of the Parties The Employer contends that CWA members in the equipmentman construction classification are entitled to the disputed work because traditionally and historically that work has been assigned to its own employees, although from time to time it has also been done by independent contractors. Addi- tionally, the Employer contends that equipment- man construction employees represented by CWA have performed the disputed work at times when employees represented by Local 3 have been work- ing at 60 Hudson Street and, therefore, Local 3 has previously acquiesced in this work assignment. CWA contends that Western Union' s assignment of the disputed work is consistent with past prac- tice, and that Local 3's claim to the disputed work is in direct conflict with the existing contract between Western Union and CWA. Local 3 moves the Board to quash the notice of hearing on the ground that this controversy does not fall within the ambit of Section 10(k) because Western Union unilaterally created the dispute, and because it is basically a dispute between Western Union and the contractors. Local 3 also argues that the decision of an impartial umpire in a proceeding arising out of this dispute is binding upon the unions. D. The Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors in the light of common sense and experience.3 E. Conclusions as to the Merits of the Dispute In making our determination we shall , as we have done in the past , consider all relevant factors. We note initially , however , that several factors ordinari- ly of importance in these cases are irrelevant here. The skills of the respective employees are not a fac- tor for consideration herein because , as the record indicates , both CWA and Local 3 members possess the requisite skills to perform the disputed work satisfactorily. There is no question with respect to the qualifications of members of Local 3 to perform the work. And the record indicates that Western Union has a long-standing practice of allocating to its own employees, now represented by CWA, the relatively simple tasks of installing lighting fixtures and outlets and the pulling of the necessary wires from panel boxes to accomplish such installations. In addition, there is no support in the record for an award of the work in question to one rather than to the other of the unions on the basis of an existing contract. The parties stipulated that Local 3 has never had a certification to represent Western Union employees, and that there has been no bar- gaining relationship with Western Union. Although CWA has a valid subsisting contract with Western Union containing job classifications, that contract does not contain job descriptions. The decision to contract out work or to have it performed by Western Union employees has always remained Western Union's prerogative. The CWA contract's provisions do not encompass the work in dispute. Finally, the arbitration award in favor of Local 3 is of little consequence here. We note that only Local 3 and CWA were parties to the arbitration proceed- ing, and that the award was not binding on Western Union. Moreover, the parties stipulated that there has been no agreed upon or voluntary method of settling the dispute in this case. Such award does not constitute a voluntary settlement within the meaning of Section 10(k) and is not binding on the Board.' On the basis of such relevant factors as we herein find, we shall award the disputed work to em- ployees of Western Union represented by CWA. Western Union employees in the equipmentman construction classification have performed the work in dispute dating back to 1947 when Western Union employees were represented by the Amer- ican Communications Association, hereinafter called ACA. CWA succeeded the ACA, and on April 25, 1966, it was certified to represent "All employees in the Metropolitan Division bargaining unit of the Western Union Telegraph Co." There is testimony that Western Union employees have in- stalled new electrical fixtures for several of its te- nants at its 60 Hudson Street headquarters. In addi- tion, Western Union employees installed fixtures in the building in 1966 and 1967 when the building was converted from DC to AC. Although there is evidence that Comstock and Lowy have also per- i N L R B v Radio & Television Broadcast Engineers Union Local 1212, International Brotherhood of Electrical Workers (Columbia Broadcasting system), 364 U S 573, International 4csocmt,on of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Co ), 135 NLRB 1402 ' Newspaper and Mail Deliverers' Union of New York and Vicinity, 141 NLRB 578, New Yoik Mailers' Union Number Six, International Typographical Union, AFL-CIO, 137 NLRB 665 1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formed tasks including branch circuitry involving the running of wires from panels to fixtures and outlets, much of this work was related to specific jobs such as the installation of air conditioning, computer room, and a smoke detection system. However , there was testimony that two-thirds of the electrical work at the 60 Hudson Street project was being done by Western Union employees. Further, the assignment of the disputed work to Western Union employees permits a more efficient and economical operation , in view of their familiarity with the job to be done. In view of the foregoing considerations, we have decided to award the work in the instant case to the Western Union employees in the equipmentman construction classification represented by the CWA, rather than to electricians represented by Local 3. In making this determination , we are assig- ning the disputed work to employees represented by the CWA, but not to that labor organization or its members. 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 hereby makes the following determination of dispute. 1. Employees of The Western Union Telegraph Company who are represented by Communications Workers of America , are entitled to perform the work of installing branch circuit electrical work in- cidental to and in connection with the installation of lighting fixtures and conventional wall outlets and the pulling of wires in connection with such in- stallations from panel boxes located within the Em- ployer 's building at 60 Hudson Street , New York City, New York. 2. Local Union No . 3, International Brotherhood of Electrical Workers, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D ), to force or require The Western Union Telegraph Company toassign the above-described work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute , Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 2 , in writing , whether or not it will refrain from forcing The Western Union Telegraph Com- pany , by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to em- ployees represented by it rather than to employees represented by Communications Workers of Amer- ica.