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National Labor Relations Board v. Local 3

decided: March 15, 1984.

NATIONAL LABOR RELATIONS BOARD, PETITIONER, AND NORTHERN TELECOM, INC., INTERVENOR,
v.
LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, RESPONDENT



Application of the National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, for enforcement of its order against Local 3, International Brotherhood of Electrical Workers. Granted.

Mansfield, Pierce and Winter, Circuit Judges.

Author: Pierce

PIERCE, Circuit Judge:

This case comes before this court upon the application of the National Labor Relations Board ("NLRB" or "Board"), pursuant to section 10(e) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. ยง 160(e) (1976),*fn1 for enforcement of its order issued on October 26, 1982, against Local 3, International Brotherhood of Electrical Workers ("Local 3"). For the following reasons, we grant enforcement.

I. BACKGROUND

Northern Telecom, Inc. ("Telecom") is engaged in the business of selling, installing, and repairing telephone systems. Telecom's installation employees are represented by the Communication Workers of America, AFL-CIO ("CWA"), for the purposes of collective bargaining. Telecom's installation of multi-floor telephone systems generally requires surveying the location, ascertaining the materials necessary, pulling the telephone cables, placing the telephone instruments and building the private automatic branch exchanges, the pieces of equipment that connect the installed telephones to the outside world.

Telecom's installation of multi-floor telephone systems also requires preparatory electrical work, commonly called access work, that generally is performed by electrical contractors under collective bargaining agreements with Local 3, a union that represents electricians in the New York City area. The installation of a multi-floor telephone system usually begins with Telecom pulling station cable. During this same time, the electrical contractor usually commences the preparatory or access work so that when Telecom finishes pulling the station cable, it can enter the electrical closets and "run . . . risers to connect all floors together." After the riser shaft work and other electrical contractor work is finished, Telecom pulls larger riser cables from any floor where telephones are located down to the switchroom. Finally, Telecom connects the private automatic branch exchange and tests it.

For a number of years, Local 3 has pursued a "total job" policy, pursuant to which it claims all electrical work, including installation of telephone systems, in projects on which its members do any of the electrical work. This policy is reflected in Art. XIII, Sec. 12 of Local 3's bylaws: "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." Local 3's bylaws further require members to report anyone who violates this rule and provide that violators may be disciplined in proceedings brought before Local 3's executive board.*fn2

On or about August 14, 1981, Telecom contracted with Johnson & Higgins ("J & H"), a company engaged in the insurance brokerage business, for the sale and installation of a 1200-telephone communications system in the ten or more floors J & H was to occupy in a building at 95 Wall Street in New York City. The installation work included the pulling of station cable for each telephone to a location on each floor, the joining of each floor together with riser cable running through the building to the switchroom where the private automatic branch exchange was to be located, testing of the telephones, and cutting over to the New York Telephone Company central office lines.

In conjunction with this installation work, J & H required the performance of access work. This access work consisted of the installation of electrical circuits, the grounding of circuits in the telephone switchroom, the coring of holes in the floors, and the installation of conduit to transport cables from floor to floor. J & H reserved the right to choose an electrical contractor to provide the access work needed for the installation. George H. Kleinknecht, Inc. ("Kleinknecht"), an electrical contractor under contract with Local 3, bid on the access work and was awarded the job. Kleinknecht was already performing other electrical work at the jobsite.

On November 9, before Kleinknecht began the J & H telephone access work, Telecom started working at 95 Wall Street. The next day, Stuart Brown, the Kleinknecht foreman and a member of Local 3, approached several Telecom technicians and asked them if they belonged to a union. Further, he requested that they show their union cards. Two of the technicians produced their cards, which confirmed their CWA membership. At this point, Brown showed his own Local 3 card and asked the group of Telecom employees if they would like to join Local 3. When the employees declined, Brown responded that a Local 3 steward would talk to them in the future.

Kleinknecht began the telephone access work on November 23, 1981, and by December 11 it had completed work on several floors at the jobsite. On that day, Kleinknecht employees stopped their work, which was then in progress on the twelfth floor, and abandoned their equipment -- including pipes, tubings, tools, and gang boxes -- near the freight elevator. The following Monday, December 14, William Standley, J & H's manager of office services, and the person responsible for coordinating Kleinknecht's access work with Telecom's work, met with Brown to discuss a construction project at another jobsite. At that time, Brown informed Standley that there was a jurisdictional problem between Local 3 and CWA at the J & H jobsite and that the access work had been halted. As a result of this information, Standley then called Peter Kleinknecht, a principal of Kleinknecht, who confirmed that there was a labor jurisdictional problem, that his men were not working, and that Local 3 was claiming that it should do all the work on the telephone system, including the work that Telecom was performing.

The following morning, December 15, Standley met in his office with Brown and Alf Flornes, a Kleinknecht employee who had signed the bid for the Telecom access work. During a conversation about another construction project, Standley asked about the Telecom telephone installation problem. Brown responded that there was a jurisdictional problem between Local 3 and CWA. Following this discussion, Standley took Brown and Flornes downstairs to a weekly status meeting where a discussion about the J & H project was in progress. Present at this meeting were Darwin Ley, Telecom's manager of financial and administrative systems; Brian Reilly, Telecom's project manager; and three other employees. After being introduced by Standley, Brown confirmed that work had stopped because of a jurisdictional dispute between Local 3 and CWA. Further, Brown stated that Local 3's jurisdiction extended to pulling cable on the J & H jobsite based on precedent established at another jobsite. Reilly responded that no precedent was set because the other jobsite had involved another employer's determination as to whom it wanted to do the work. Reilly also asked if Local 3 expected to pull cable at New York Telephone jobsites where CWA members were employed also. Brown responded "no" and explained that an "arrangement" had been made regarding those jobsites. Ley asked if Local 3 felt that it should be doing all of the electrical work at the project and Brown nodded affirmatively.

After leaving the meeting, Standley telephoned Peter Kleinknecht. Peter Kleinknecht informed him that in view of the labor dispute, Kleinknecht was prepared to complete the entire job at no extra cost to J & H. Thereafter, during a conference call between Standley, Peter Kleinknecht and Ley, Peter Kleinknecht repeated the offer. Peter Kleinknecht also stated that he believed "that only one union should be involved in this job, that anything else would be impractical and unreasonable and only give problems." Standley informed Peter Kleinknecht that he had no authority to respond to his offer, but that he would get back to him later.

On December 22, a meeting occurred at the jobsite among officials of J & H, Telecom and Kleinknecht about the work stoppage by Local 3 members. Peter and George Kleinknecht, Ley, Standley, and attorneys for Kleinknecht and J & H were present. When the Kleinknechts were asked if they had contacted Local 3, their attorney, Harvey Goldstein, directed them not to answer. When Goldstein was asked why the access work had stopped, he answered that Kleinknecht's contract with Local 3 would not permit it to work with any other union in the building.

On December 23, Telecom official Michael Zafarano telephoned Local 3's office to speak to Bernard Rosenberg, a Local 3 business representative who was responsible for the area that included the J & H jobsite. Rosenberg was not available and Zafarano left a message for a return call. The call was not returned. That same day, Telecom filed unfair labor practice charges with the NLRB's Manhattan Regional Office, and Local 3 was duly served with a copy of the charges.

The following day, Zafarano attempted to call Rosenberg again and spoke to Mike Takfor, another Local 3 business representative, when Rosenberg again was unavailable. Zafarano told Takfor that he wanted to speak with Rosenberg about a work stoppage by Kleinknecht electricians at the J & H jobsite. Zafarano received no reply to this call.

On December 27, Rosenberg instructed "some people" to visit the J & H jobsite to tell the electricians "to get back to work immediately [as] they had no right stopping." The next morning, December 28, Local 3 representatives went to the J & H jobsite and told the employees present -- a group that did not include the vacationing Brown -- to return to work. The employees resumed work the next ...


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