Radio-Television-Sound Technicians

National Labor Relations Board - Board Decisions

Jan 29, 1970

180 N.L.R.B. 997 (N.L.R.B. 1970)

RADIO-TELEVISION-SOUND TECHNICIANS 997
Radio-Television-Sound Technicians Local Union
1139 , International Brotherhood of Electrical
Workers, AFL-CIO and Motorola
Communications and Electronics, Inc. and
Electronic Sales and Service and Communications
Workers of America, Local No. 3410, AFL-CIO.
Case 15-CD-126
January 29, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
outflow in excess of $10,000 per year to points
located outside the State of Louisiana.
Gervais F. Favrot Co., Inc. (herein Favrot)
purchases and receives materials valued in excess of
$50,000 annually directly from points outside the
State of Louisiana.
L. J. Boudreaux Electric Company (herein
Boudreaux) purchases and receives goods and
materials valued in excess of $50,000 annually
directly from points located outside the State of
Louisiana.
The parties further stipulated, and we find, that
the above Employers are engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and it will effectuate the policies of the Act to
assert jurisdiction herein.
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following a charge filed by Motorola
Communications and Electronics, Inc. (herein
Motorola) alleging that Radio-Television-Sound
Technicians Local Union 1139, International
Brotherhood of Electrical Workers, AFL-CIO
(herein Respondent Union or Local 1139), violated
Section 8(b)(4)(D) of the Act. A duly scheduled
hearing was held before A. Richard Gear , Hearing
Officer, on August 26 and 27, 1969. All parties were
afforded full opportunity to be heard, to examine
and cross-examine witnesses , and to adduce evidence
bearing upon the issues . Thereafter, Motorola,
Respondent Union, Electronic Sales and Service
(herein Electronic), party to the dispute, and
Communications Workers of America, Local No.
3410, AFL-CIO (herein CWA), party to the dispute,
filed briefs.
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.
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
affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESSES OF THE EMPLOYERS
The parties stipulated as follows:
Motorola is an Illinois Corporation operating
throughout the United States, annually performing
services valued in excess of $50,000 for contractors
and others who are engaged in interstate commerce.
Motorola, in Illinois, manufactures and ships to
Louisiana employers goods and provides services for
same in excess of $100,000 a year.
Electronic is a proprietorship owned and operated
by Burton Blancher in New Orleans, Louisiana,
having an inflow in excess of $50,000 per year from
points located outside the State of Louisiana and an
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Local
1139 and CWA are labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The dispute concerns the installation of nurse call
communication equipment at the West Jefferson
Hospital , New Orleans , Louisiana . Favrot was
engaged by the hospital as the general contractor in
charge of completion of an existing building and
construction of a new wing . Favrot subcontracted all
electrical work to Boudreaux. As the architect's
specifications required Motorola equipment to be
used for the patient-to-nurse communications,
Boudreaux subcontracted the installation of this
equipment to Motorola who in turn further
subcontracted the installation work to Electronic.
Electronic ' s service and installation employees are
represented by CWA with whom Electronic has a
collective-bargaining agreement . Favrot is a
signatory to a labor agreement between the
Associated General Contractors of America, New
Orleans Chapter (herein AGC ), and the Building
and Construction Trades Council of Greater New
Orleans and its affiliates , AFL-CIO (herein Trades
Council). Article IV, Section 2 of the agreement
provides that the signatory general contractors agree
that when outside construction work coming under
the jurisdiction of certain listed unions is
subcontracted , the contractors will subcontract such
work to subcontractors who at the time of the
award of the contract have a bargaining agreement
in effect with one of the listed labor unions. Local
1139 is a listed union; CWA is not . Boudreaux is a
member of the National Electrical Contractors
Association of New Orleans , Louisiana and Vicinity,
and is party to a collective-bargaining agreement
between that Association and Local Union 130,
IBEW, which is a union listed in the AGC-Trades
180 NLRB No. 154
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council agreement . Motorola does not have a labor
agreement with any labor organization in the area.
Work at the West Jefferson Hospital job began in
January 1969. John A. Stewart, Assistant Manager
and Director of the New Orleans Chapter of AGC,
testified that in late March or early April 1969,
Fred Fath, Assistant Business Manager of IBEW,
told him that if a contractor other than one which
hired Local 1139 people performed the on-site
installation at the West Jefferson job, he would
picket the job. At about the same time Fath
telephoned L. J. Boudreaux , president of Boudreaux.
Mr. Boudreaux testified that Fath stated his
company had violated the AGC-Trades Council
agreement by awarding a contract to other than a
Trades Council employer in the area and that he
would picket the job if this was not straightened out.
On April 22, 1969, Electronic's proprietor, Burton
Blancher, and three employees appeared at the
jobsite to begin installation of the Motorola
equipment . Blancher testified that after Boudreaux's
foreman, Barban, advised him that the job would be
shut down if he started work, he contacted Favrot
official Don Wilson who directed him not to
commence work until he could set up separate
entrances for the contractors . By 12:15 p.m. signs
were posted at three entrances indicating reserved
gates for Boudreaux employees , Favrot employees
and other subcontractors , and for Electronic and
Motorola employees , respectively. Blancher also
testified that on the same morning he overheard a
conversation between Fath and Electronic employee
Frank Nuzzo in which Fath told Nuzzo "you better
not" start the installation work . Fath admitted
telling Nuzzo that he was at the jobsite in order to
stop the work.
On the morning of April 23, Respondent Union
picketed all entrances to the jobsite' causing a
complete work stoppage .2 That same day Local 1139
filed a grievance against Favrot with the Joint
Grievance Committee of the Southeast Louisiana
Building and Construction Trades Council of
Greater New Orleans and the AGC, alleging that
Article IV, Section 2 and 3 of the AGC-Trades
Council agreement requires that the general
contractor see that work is subcontracted only to
employees having contracts with listed unions. On
April 28, 1969, the Committee rejected the IBEW's
claim , stating that it did not have the capacity to
require any of the parties to cancel any of the
various subcontracts in issue.
'The picket signs read.
TO THE PUBLIC: EMPLOYEES OF ELECTRONIC SALES AND
SERVICE DO NOT RECEIVE THE SAME WAGES, HOURS, AND
WORKING CONDITIONS NOT DIRECTED AGAINST ANY
OTHER EMPLOYER
'Electronic employees continued to work the next day (April 24) but on
April 25 Boudreaux called Blancher and asked him to atop his work.
Although Boudreaux would not reveal his reason , he told Blancher that his
employees on other jobs , who are members of IBEW Local 130, were
calling in sick and not reporting to work. Boudreaux thereafter requested
Electronic to return to complete the installation on May 20.
The record also shows that Fath, who in addition
to his official union duties was also a commissioned
salesman for Executone Systems Co. of Louisiana, a
competitor of Electronic,3 had previously been
involved in a number of incidents in which he
threatened and/or brought about picketing on jobs
which Electronic had the contract for installation of
communications equipment. Blancher testified that
around August 1966 he attempted to perform work
at the International Trade Mart building then under
construction in New Orleans. Electronic had
contracted directly with the owner, The Ferd Marks
Company, to install and service a complete
intercommunications system for certain offices in
the building. After a rank-and-file electrician told
Blancher that Electronic employees belonged to the
wrong union to perform the work, Fath met with
Blancher and advised him that the only way he
could perform the work was to hire men from Local
1139. Blancher attempted to do so but Fath was
unable to furnish any such employees. During the
various discussions Electronic installed most of the
equipment and the job was picketed. Fath admitted
that he asked a vice president of Ford Marks to
turn the work over to an employer with a contract
with Local 1139.
In 1968 Electronic had a subcontract from
Motorola to install nurse-call equipment at the
Touro Infirmary in New Orleans. The general
contractor was Favrot. Favrot's estimator, Sargent,
testified that Fath appeared at the jobsite and
advised the electrical subcontractor that Electronic's
employees were in the "wrong union" and that the
work would have to be performed by members of
Local 1139. Fath was asked how the problem could
be solved and he replied that it could be resolved by
employing members of his union . Fath further
stated that he would picket the job if necessary and
set a deadline of 2 days to remove Electronic from
the job. Fath later contacted AGC representative
Stewart and in Sargent 's presence told Stewart that
the wrong union was performing the work and that
those men had to be taken off the job or he would
picket it.4 Thereafter, the electrical contractor asked
Fath if the problem would be solved if Motorola
cancelled its contract with Electronic and employed
another company using members of Local 1139.
Fath replied that it would.5 Local 1139 picketed the
Touro jobsite from January 18 through January 25,
1968, completely shutting down all work.
Fath testified that in 1967 he told the electrical
contractor at the St. Johns Gymnasium job that
Electronic should not be permitted to perform the
work on that job since they did not employ
members of Local 1139. Fath also testified that
'Executone communications equipment is a major competitor with
Motorola in the New Orleans market . Executone Systems Co. has a
contract with Local 1139.
'Stewart confirmed the substance of this conversation
'Fath admitted that the purpose of his visit to the Touro jobsite was to
see that members of Local 1139 got the work in dispute.
RADIO-TELEVISION-SOUND TECHNICIANS 999
while visiting the East Jefferson Hospital jobsite he
warned Favrot superintendent Irvine Le Blanc that
if he wished to "eliminate any future problems", the
installation of nurse call equipment should be
performed by employees who were members of a
union listed in the AGC-Trades Council agreement.
Le Blanc confirmed this conversation and added
that Fath specifically referred to the troubles then
going on at the West Jefferson job. At the time of
the hearing Electronic had not yet begun its
installation work at East Jefferson.
B. The Work in Dispute
The dispute concerns the installation of electronic
nurse-call intercommunication equipment at the
West Jefferson Hospital jobsite in New Orleans,
Louisiana.
C. The Contentions of the Parties
Local 1139 contends that there is no jurisdictional
dispute cognizable under Section 10(k) of the Act
and that it engaged in picketing solely for the
purpose of enforcing the AGC-Trades Council
agreement which requires signatory contractors to
subcontract work to employees having contracts
with signatory labor organizations . Motorola,
Electronic, and CWA contend that the dispute is
properly before the Board for determination under
Section 10(k) of the Act, and that the record
establishes reasonable cause to believe that Local
1139 has engaged in conduct violative of Section
8(b)(4)(D) of the Act. They request that the Board
award the disputed work to the employees of
Electronic. Motorola also requests that the scope of
the award be extended to prohibit future illegal
activity by Local 1139 at jobs on which Motorola
and/or Electronic are engaged in the installation of
communications equipment.
D. Applicability of the Statute
Before the Board may proceed with a
Determination of Dispute pursuant to Section 10(k)
of the Act, it must be satisfied that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred . In the instant case,
the dual question is presented as to whether Local
1139 was in fact claiming the work in dispute and, if
so, whether it engaged in illegal conduct within the
meaning of Section 8 ( b)(4)(i) and ( ii)(D) in
furtherance of this object.
The record shows that in late March or early
April 1969, Business Manager Fath told AGC
Director Stewart that he would picket the West
Jefferson job if a Local 1139 contractor did not
perform the work in dispute. At about the same
time Fath similarly advised the electrical contractor,
Boudreaux , that if a Trades Council employer in the
area was not substituted for Electronic he would
picket the job. On April 22 Fath admittedly went to
the jobsite in order to stop Electronic from
commencing work. At that time he learned from
Electronic employee Nuzzo that he was about to
begin the installation work. Fath warned Nuzzo,
"You better not". On April 23 Local 1139 picketed
all entrances to the jobsite and caused a stoppage of
work. The record further discloses that in 1966 and
1968 Local 1139 attempted to displace Electronic
and its CWA employees from two jobs involving the
installation of equipment similar to that involved in
the instant case. In both instances Local 1139
resorted to picketing which caused work stoppages.
In neither instance is there any evidence that Local
1139 rested its claim on any alleged breach of
contract. In any event, Local 1139 has no contract
with Electronic; its picket sign at the West Jefferson
job specified Electronic as the sole employer with
whom it had a dispute; and the sign failed to refer
to any contract or contractual dispute.
In view of the conduct described above, we find
there is reasonable cause to believe that Local 1139
was claiming the work in dispute and that a
jurisdictional dispute existed. Likewise, on the basis
of the testimony on the record that Local 1139
warned that it would picket and did picket the
jobsite in order to compel assignment of the
installation work to employees represented by Local
1139, we conclude that there is reasonable cause to
believe that Local 1139 engaged in conduct violative
of Section 8(b)(4)(D) and therefore find that the
dispute is properly before the Board for
determination under Section 10(k) of the Act.
E. The Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors . As the Board has stated , its determination
in a jurisdictional dispute case is an act of judgment
based upon common sense and experience in the
weighing of these factors.6
The record shows that Electronic in the past has
exclusively utilized its own employees who are
represented by CWA . The record also shows that
both members of CWA and Local 1139 have
performed many installations of equipment of this
or more complex types. However, Motorola
considers the employees of Electronic to be more
qualified inasmuch as they have been extensively
trained and instructed by Motorola in the
installation, use, and maintenance of the
intercommunication system involved herein. Further,
Bailey, of Motorola, testified to two instances where
work performed by an employer utilizing members
of Local 1139 was unsatisfactory and necessitated
reworking by employees of Electronic . Finally, the
'International Association of Machinists, Lodge No. 1743, AFL-CIO
(J.A. Jones Construction Company). 135 NLRB 1402.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record discloses that the contract between Motorola
and Boudreaux requires servicing of the system after
installation and that Motorola subcontracted both
installation and service to Electronic.'
In view of the foregoing, on the basis of the
record as a whole, and on appraisal of all relevant
considerations, we believe that the work in dispute
should be awarded to employees represented by
CWA. The fact that Electronic' s assignment
conforms to its own practice and is consistent with
its collective-bargaining agreement , the fact that
electricians employed by Electronic not only have
the requisite skill but have been trained in the
installation and servicing of the specific equipment
involved herein , and the attendant efficiency and
economy of operations, lead us to conclude that
Electronic' s assignment of the work is proper.
Therefore, we shall determine the dispute by
awarding the work in question to employees of
Electronic Sales and Service represented by
Communications Workers of America, Local No.
3410, AFL-CIO. In making this determination, we
are awarding the work in dispute to Electronic's
employees represented by CWA, and not to CWA
or its members.
F. Scope of the A ward
Motorola requests that we issue a broad remedial
order. On the basis of the record before us we agree
that an- order limited to the immediate controversy
would be inadequate. The record discloses a
persistent pattern of interference by Fath and Local
1139 directed against Electronic on jobs in the area
involving the installation of intercommunication
equipment. Thus, in addition to the conduct at the
West Jefferson project now before us, the record
shows at least three instances in 1966, 1967, and
1968 in which Fath threatened and/or brought
about picketing in an attempt to replace Electronic
and its CWA employees with a contractor
employing Local 1139 members. The 1968 picketing
at the Touro Infirmary also involved Motorola
which, as here, had subcontracted the installation
work to Electronic. Finally, it appears that in the
spring of 1969 Fath visited the East Jefferson
Hospital jobsite and warned a Favrot superintendent
that if he wished to "eliminate any future
'Other factors usually considered by the Board in jurisdictional dispute
cases provide little assistance in determining the instant dispute Thus
neither union supports its claim in whole or in part on any Board
certification , and the evidence as to area practice indicates that other
employers in Louisiana engaged in similar work have employees
represented by both unions
problems," the installation of sound equipment
should not be performed by Electronic employees
who were not members of a union "covered by the
Master Agreement." Fath specifically referred to
"troubles" then occurring at the West Jefferson job,
the subject of this case. At the time of the hearing,
installation of the intercommunications system by
Electronic had not yet begun. In view of Local
1139's past and present conduct vis-a-vis Electronic,
we cannot ignore this patent threat to continue its
illegal activity in the future. Accordingly, we shall
also determine that Local 1139 was not and is not
entitled, by means proscribed by Section 8(b)(4) of
the Act, to force or require Electronic to assign the
disputed work to its members at either the West
Jefferson Hospital or East Jefferson Hospital jobs.
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 the
Dispute:
1. Employees employed by Electronic Sales and
Service who are represented by Communications
Workers of America , Local No. 3410, AFL-CIO,
rather than electricians represented by
Radio-Television -Sound Technicians Local Union
1139, International Brotherhood of Electrical
Workers , AFL-CIO, are entitled to perform the
installation of electronic nurse-call
intercommunication equipment at the West
Jefferson Hospital and East Jefferson Hospital
jobsites in New Orleans, Louisiana.
2. Radio -Television-Sound Technicians Local
Union 1139, International Brotherhood of Electrical
Workers , AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4) of the Act, to force or
require Electronic Sales and Service to assign the
above work to electricians represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute,
Radio- Television -Sound Technicians Local Union
1139, International Brotherhood of Electrical
Workers , AFL-CIO, shall notify the Regional
Director for Region 15, in writing , whether it will or
will not refrain from forcing or requiring Electronic
Sales and Service , by means proscribed by Section
8(b)(4), to assign the work in dispute to employees
represented by Local 1139 rather than those
represented by Communications Workers of
America , Local No. 3410, AFL-CIO.