Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Northern Telecom, Inc.)

National Labor Relations Board - Board Decisions

Jul 29, 1982

262 N.L.R.B. 1453 (N.L.R.B. 1982)

LOCAL, UNION NO. 3, ELECTRICAL WORKERS
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO and Northern
Telecom, Inc. and Local 1109, Communications
Workers of America, AFL-CIO. Case 2-CD-
661
July 29, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Northern Telecom, Inc.,
herein called Northern Telecom or the Employer,
alleging that Local Union No. 3, International
Brotherhood of Electrical Workers, AFL-CIO,
herein called Local 3, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requir-
ing the Employer to assign certain work to its
members rather than to employees represented by
Local 1109, Communications Workers of America,
AFL-CIO, herein called Local 1109.
Pursuant to notice, a hearing was held before
Hearing Officer Joel C. Schochet on February 18
and 25 and March 29, 1981. All parties appeared
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to
adduce evidence bearing on the issues. Thereafter,
all parties filed briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Delaware corporation with its principal
place of business in Nashville, Tennessee, and an
office and place of business in New York, New
York, is engaged in the manufacture, sale, installa-
tion, and service of telephone equipment. During
the 12 months preceding the hearing, the Employ-
er, in the course of its operations, derived income
in excess of $50,000 from clients outside the State
of Tennessee and received materials valued in
excess of $50,000 from outside the State of New
York. Accordingly, we find that the Employer is
262 NLRB No. 184
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that it will effectu-
ate the purposes of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 3
and Local 1109 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
On August 14, 1981,1 Northern Telecom con-
tracted with Johnson & Higgins, an insurance and
actuarial firm, to install a telephone system at John-
son & Higgins' offices located at 95 Wall Street,
New York, New York. In October, Northern Telet
com's employees, who are represented by Local
1109, began performing the installation work,
which involved pulling station cable for each tele-
phone line to a location on each floor, joining the
floors with riser cable, running the riser cable to
the switchroom and connecting the riser cable to a
"private branch exchange," and then testing the
lines and "cutting over" to the New York Tele-
phone Company's central office lines.
Under its agreement with Northern Telecom,
Johnson & Higgins was responsible for the access
work, which involved the preparation of the
switchroom and the installation of conduit that
would give access to the riser cables between the
floors. Johnson & Higgins awarded this work to
Kleinknecht Electrical Contracting, Inc., whose
bid was based on specifications provided by North-
ern Telecom. Kleinknecht's employees, who are
represented by Local 3, began the access work on
or about November 23.2
Both phases of the job proceeded without inci-
dent until Friday, December 11. On that afternoon,
William Standley, Johnson & Higgins' manager of
office services, heard that Kleinknecht's employees
had stopped working. Standley confirmed the exist-
ence of a work stoppage on Monday, December
14, when he spoke with Kleinknecht's foreman,
Stuart Brown, who was a member of Local 3. Ac-
cording to Standley, Brown stated that there was a
labor jurisdiction problem between the two Unions
and that the work being done by members of Local
1109 was supposed to be done by members of
Local 3. Standley then called Peter Kleinknecht, a
Kleinknecht official, who indicated that all the
work should be done by members of Local 3.
' All dates hereafter are in 1981 unless indicated
2 Kleinknecht's employees were already in the building, working on
other jobs.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following morning, December 15, Standley
brought Brown and Alf Flornes, Kleinknecht's esti-
mator, to the regular weekly meeting held by
Darwin Ley, Johnson & Higgins' manager of finan-
cial administration, and attended by various repre-
sentatives of Johnson & Higgins and Northern Te-
lecom. According to Brian Reilly, Northern Tele-
com's project supervisor at 95 Wall Street, Brown
stated that there was a problem because Local 3
had jurisdiction for pulling cable and that "they
wanted to pull the cable." Brown also mentioned
that Local 3 had pulled the cable for Citicorp,
which was a Northern Telecom installation. Ley
testified that he asked Brown if Local 3 felt its
members should be doing all the work, and that
Brown nodded his head yes in reply. Later that
day, during a conference call between Ley, Stand-
ley, and Peter Kleinknecht, Kleinknecht said that
only one union should be involved and offered to
perform the installation work at no additional cost
to Johnson & Higgins.
On or about December 22, at a time when the
work stoppage was still in progress, officials from
Northern Telecom, Johnson & Higgins, and
Kleinknecht met, this time accompanied by their
attorneys. Ley testified that Kleinknecht's attorney
said that Kleinknecht had to "pull off the job" be-
cause of its contract with Local 3, which required
that Local 3 members do all of the work.
Local 3's business representative, Bernard Rosen-
berg, testified that he did not find out until the
Sunday after Christmas (December 27) that Brown
had refused to do the access work. Rosenberg fur-
ther testified that he informed Kleinknecht's em-
ployees to continue working the next day. Kleink-
necht's employees returned to the job on Decem-
ber 28 or 29, and they completed the access work
on or about January 20, 1982.
Michael Zafarano, Northern Telecom's branch
operations manager for the New York metropolitan
area, testified about two occasions in 1980 and 1981
when Northern Telecom had difficulty obtaining a
Local 3 contractor to perform only part of an in-
stallation job. In each instance, the contractors con-
tacted by Northern Telecom told Zafarano that
they would not do just a portion of the work but
had to perform the entire job, explaining that this
was a rule laid down by Local 3.
B. The Work in Dispute
The work in dispute involves the installing, test-
ing, and servicing of equipment relating to the in-
stallation of an electronic telephone system for
Johnson & Higgins at its 95 Wall Street, New
York, New York, location.
C. Contentions of the Parties
Local 3 contends that the notice of hearing
should be quashed. It argues that it madc no claim
for the work in dispute and that it is not responsi-
ble for the actions or statements of Brown. In this
regard, Local 3 contends that it was Kleinknecht
who took Brown off the access work, and further
asserts that it did not even know of the work stop-
page until it was notified of it by Region 2 after the
charge in the instant case was filed. Local 3 further
contends that the matter is moot since Kleink-
necht's employees resumed work before the notice
of hearing was issued and since the access work
was completed prior to the hearing. It also con-
tends that the record does not support a broad
award. Local 3 presented no evidence at the hear-
ing with respect to the merits of the dispute and
does not address the merits of the dispute in its
brief.
The Employer contends that the instant dispute
is yet another incident in the long and continuing
dispute between Local 3 and Local 1109 regarding
the installation of telephone systems in the New
York metropolitan area, and it adverts to Local 3's
history of attempting to secure such work by un-
lawful implementation of its "total job" rule. The
Employer further contends that Local 3 is respon-
sible for Brown's actions since he was acting pursu-
ant to Local 3's "total job" rule. The Employer
also contends that the work in dispute should be
awarded to the Employer's employees who are
represented by Local 1109 based on the following:
the collective-bargaining agreement between the
Employer and Local 1109 specifically refers to the
work in dispute; it is more economical and efficient
for the Employer to use its own employees who
are specially trained in the use of Northern Tele-
com equipment; and it is Northern Telecom's prac-
tice and preference to use its own employees.
Local 1109 has taken a position basically consistent
with that of the Employer.
The Employer further contends that, in view of
the long history of jurisdictional disputes between
the two Unions over the installation of telephone
systems in the New York metropolitan area, the in-
stant case is not moot, and it urges the Board to
issue a broad award assigning the work in dispute
to employees represented by Local 1109 in any
area served by Northern Telecom where the geo-
graphical jurisdictions of Local 3 and Local 1109
coincide.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
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LOCAL UNION NO. 3, ELECTRICAL WORKERS
Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
In Local Union No. 3, International Brotherhood
of Electrical Workers, AFL-CIO (L M. Ericsson
Telecommunications, Inc., New York Division), 257
NLRB 1158 (1981), the Board found that Local 3
has a "total job policy" under which Local 3 con-
tractors are supposed to bid only on jobs for which
they can get the total work of installing and servic-
ing telephone interconnect systems. This total job
policy is also embodied in article III, section 12, of
Local 3's bylaws, which provides:
No member is to give away work coming
under the jurisdiction of this Local, or to
allow any other tradesmen to do work coming
under this Local's jurisdiction.
This bylaw has been found to constitute induce-
ment or encouragement of a walkout or other re-
fusal to perform services in violation of Section
8(b)(4)(B), 3 and Local 3 has been held responsible
for the conduct of its members acting pursuant
thereto. 4
As indicated above, on December 14, Kleink-
necht's foreman, Brown, who was a member of
Local 3, told Standley of Johnson & Higgins that
the work being done by members of Local 1109
was supposed to be done by members of Local 3.
At a meeting the next day, Brown told officials of
Johnson & Higgins and Northern Telecom that
Local 3 had jurisdiction over pulling cable and
wanted to pull it, and he nodded his head affirma-
tively when asked if Local 3 believed its members
should be doing the entire job. Moreover, it does
not appear that Local 3 took any action to disci-
pline Brown, or ally other Local 3 member who
ceased work, as required by the Union's constitu-
tion and bylaws where unauthorized work stop-
pages occur. Considering these facts in the context
of Local 3's maintenance of the above-described
bylaw and total job rule, we find that Brown
ceased performing his own work and demanded
the disputed work in accordance with that bylaw
and rule. Accordingly, we find that Brown was
acting in Local 3's behalf to protect its jurisdiction
s See Local Union No. 3. International Brotherhood of Electrical Work-
ers, AFL-CIO (Eastern States Electrical Contractors, Inc.), 205 NLRB 270
(1973); Local Union No. 3, International Brotherhood of Electrical Workers.
AFL-CIO (New York Telephone Company), 140 NLRB 729, 740 (1963).
4 See Local 3. IBEW (L. M. Ericsson). supra, at 1371: Local Union No.
3. International Brotherhood of Electrical Workers. AFL-CIO (Western
Electric Company, Inc), 141 NLRB 888, 893 (1963). Accord: Local 1016.
United Brotherhood of Carpenters & Joiners of Amrnerica. AFL-CIO (Booher
Lumber Ca, Inc.), 117 NLRB 1739 (1957).
and that Local 3 is responsible for Brown's ac-
tions."
We further find no merit in Local 3's contention
that the instant dispute is moot. In this regard, we
note the long history of jurisdictional disputes over
similar work involving the same Locals and differ-
ent employers. We also note Zafarano's testimony
about two recent instances in 1980 and 1981 in
which Northern Telecom experienced difficulties-
as a result of Local 3's total job policy-in obtain-
ing a Local 3 contractor to perform only a portion
of an installation job. In these circumstances, we
find that there is a real likelihood that similar dis-
putes will occur in the future.6 Thus, although the
particular work which gave rise to this proceeding
has been completed, the underlying jurisdictional
dispute has not been resolved. Accordingly, we
find that the dispute is not moot.
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred. Addition-
ally, no party contends and there is no evidence
demonstrating that an agreed-upon method for the
voluntary adjustment of the instant dispute exists.
We therefore find that this dispute is properly
before the Board for a determination under Section
10(k) of the Act.
E. 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 fac-
tors. 7 The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on commonsense and experience reached by bal-
ancing those factors involved in a particular case.8
1. Collective-bargaining agreements
Neither of the Unions involved herein has been
certified by the Board as the collective-bargaining
representative for a unit of the Employer's employ-
ees. The Employer does not have a collective-bar-
gaining agreement with Local 3. The Employer
and Local 1109 have a current collective-bargain-
ing agreement which specifically refers to the work
in dispute. Accordingly, we find that the factor of
collective-bargaining agreements favors an award
of the work in dispute to the Employer's employ-
ees represented by Local 1109.
Local 3. IBEW (Western Electrnc. supra at 893.
6 See Local 581. International Brotherhood of Electrical Workers. AFL-
CIO (National Telephone and Signal Corporation), 223 NLRB 538 (1976).
N.LR.B. v. Radio d Television Broadcast Engineers Union. Local
1212, International Brotherhood of Electrical Workers, .FL-CIO [Colum-
bia Broadcasting System], 364 U S. 573 (1961).
* International Association of .Machinistm, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Employer past practice and preference
The record indicates that the Employer's regular
practice is to assign the disputed work to its own
employees who are represented by Local 1109.
While the record indicates that the Employer occa-
sionally has used electrical contractors employing
members of Local 3 to perform some of the instal-
lation work on Northern relecom jobs, the Em-
ployer contends that this has occurred only when a
customer has insisted upon using a Local 3 con-
tractor in order to avoid difficulties with Local 3.
We find, therefore, that the Employer's predomi-
nant past practice favors an award to its employes
represented by Local 1109.
At the hearing and in its brief, the Employer
stated its preference to use its own employees, who
are familiar with Northern Telecom equipment,
and who have been specially trained for the job.
While we do not afford controlling weight to this
factor, we find that it tends to favor an award of
the work in dispute to the Employer's employees
represented by Local 1109.
3. Relative skills and training
The record indicates that the Employer trains its
employees in the use of its own equipment. The
record further indicates that the Employer's em-
ployees are capable of performing all aspects of
telephone installation work and they have per-
formed such work to the Employer's satisfaction.
Although there is no direct evidence regarding the
skills or training of members of Local 3, we note
that the Employer occasionally has used contrac-
tors employing such individuals and there is no
contention that they do not possess the requisite
skills. However, there is no evidence that members
of Local 3 generally have received training in the
use of equipment similar to that utilized by the Em-
ployer. We therefore find that this factor tends to
favor an award of the disputed work to the Em-
ployer's employees represented by Local 1109.
4. Economy and efficiency of operations
The Employer presented testimony that it is
more economical to assign the work in dispute to
its own employees who are represented by Local
1109 than to members of Local 3. In this regard,
Zafarano's testimony indicates that, in the past
when Northern Telecom has utilized members of
Local 3, it has done so through a contractor, there-
by incurring additional costs. Further, as noted
above, Northern Telecom's employees have been
trained in and are familiar with Northern Telecom
equipment. We find, therefore, that this factor
favors an award of the work in dispute to the Em-
ployer's employees represented by Local 1109.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the employees of the Employer repre-
sented by Local 1109, are entitled to perform the
work in dispute. We reach this conclusion relying
on the facts that the Employer's collective-bargain-
ing agreement with Local 1109 specifically refers
to the work in dispute; the Employer's assignment
is consistent with its predominant past practice and
its preference; the Employer's employees represent-
ed by Local 1109 possess the requisite skills to per-
form the work in dispute satisfactorily; and such an
award will result in greater economy and efficien-
cy of operations. In making this determination, we
are awarding the work in dispute to employees
who are represented by Local 1109, but not to that
Union or its members.
Scope of the Determination
As noted above, the Employer urges the Board
to issue a broad award encompassing any area
served by Northern Telecom where the geographi-
cal jurisdictions of Local 3 and Local 1109 coin-
cide. The Employer relies on the lo-;g history of
jurisdictional disputes involving the same two
Unions and concerning similar telephone intercon-
nect work.
In International Brotherhood of Electrical Workers,
AFL-CIO, Local 4 (Standard Sign & Signal Co.,
Inc.), 248 NLRB 1144 (1980), the Board set forth
two prerequisites for a broad areawide award: (1)
there must be evidence that the work in dispute has
been a continuous source of controversy in the rel-
evant geographical area and that similar disputes
may recur; and (2) there must be evidence demon-
strating a proclivity to engage in further unlawful
conduct in order to obtain work similar to that in
dispute. These prerequisites for a broad order are
clearly met here since there is evidence that the
work in dispute has been a continuous source of
controversy between the two Unions in the New
York metropolitan area and that other similar dis-
putes are likely to occur in the future. Thus, we
note that Local 3 has been found to have a procliv-
ity for engaging in unlawful secondary boycott ac-
tivity in connection with claims to disputed work
involving telephone installations in the New York
metropolitan area, and that it has continued to
maintain a total job policy and bylaw which has
been found to be an inducement of unlawful con-
duct.9 Further, as noted above, the Employer on
9 See, e.g.. Local 3. IBEW (L. M. Ericsson). supra, at 1373; Local 3,
IBEW (Eastern States). supra at 270.
1456
LOCAL UNION NO. 3, ELECTRICAL WORKERS
prior occasions has experienced difficulties engen-
dered by Local 3's total job policy. Under all of
the circumstances, we find that to properly resolve
the instant dispute our award must cover all work
similar to that in dispute done by the Employer
wherever the geographical jurisdictions of Local 3
and Local 1109 coincide.
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
makes the following Determination of Dispute:
1. Employees of Northern Telecom, Inc., who
are currently represented by Local 1109, Commu-
nications Workers of America, AFL-CIO, are enti-
tled to perform the work of installing, testing, and
servicing of equipment relating to the installation
of Northern Telecom's electronic telephone sys-
tems, wherever the geographical jurisdictions of
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO, and Local 1109, Communica-
tions Workers of America, AFL-CIO, coincide.
2. Local 3, International Brotherhood of Electri-
cal Workers, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to
force or require Northern Telecom, Inc., to assign
the disputed work to employees represented by
that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 3, 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 the Employer, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign
the disputed work in a manner inconsistent with
the above determination.
1457