Local 98 IBEW

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 98, International Brotherhood of Electrical Workers, AFL-CIO and Building and Construction Trades Council of Philadelphia and Vi- cinity and ITT-Communications Equipment and Systems Division and Communications Workers of America, AFL-CIO. Case 4-CD-283 October 4, 1972 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following the filing of a charge by ITT-Communications Equip- ment and Systems Division, herein called the Employ- er, alleging that Local Union No. 98, International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 98, and Building and Construction Trades Council of Philadelphia and Vicinity, herein called BTC, had violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign the work in dispute to members of Local 98 rather than to employees of the Employer represented by Communications Workers of America, AFL-CIO, herein referred to as CWA. Pursuant to notice, a hearing was held in Phila- delphia, Pennsylvania, before Hearing Officer Ray- mond D. Goodman on June 21, 1972. All parties appeared at the hearing and were given full opportu- nity to be heard, to examine and cross-examine wit- nesses, and to adduce evidence bearing on the issues.' Thereafter, briefs were filed by, the Employer and CWA in support of their positions. 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 rulings of the Hear- ing Officer made at the hearing and finds them free from prejudicial error. They are hereby affirmed. The Board has considered the entire record in this case, including the briefs, and hereby makes the following findings: 1 Counsel for both Local 98 and BTC made an opening statement in which he contended that BTC was in no way involved in any dispute and that Local 98 was engaged in a dispute solely concerning substandard working condi- tions on the jobsite. Counsel made a motion to dismiss, and then proceeded to leave the hearing room after the Hearing Officer reserved action upon such motion for the Board. The motion is hereby denied for reasons hereafter included I THE BUSINESS OF THE EMPLOYER The record shows, and we find, that ITT-Com- munications Equipment and Systems Division is en- gaged in the installation and maintenance of commu- nications equipment and systems with facilities in var- ious States, including New York, Pennsylvania, and California. During the past calendar year, ITT-Com- munications Equipment and Systems Division, in the normal course and conduct of its operations, received materials and equipment valued in excess of $100,000 which were shipped to its facilities directly from across state lines. Accordingly, we find that ITT- Communications Equipment and Systems Division, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdicition herein. II. THE LABOR ORGANIZATIONS INVOLVED The record shows, and we find, that Local Union No. 98, International Brotherhood of Electrical Workers, AFL-CIO, Building and Construction Trades Council of Philadelphia and Vicinity, and Communications Workers of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background Facts In 1969, the Federal Communications Commis- sion issued the Carterfone decision 2 which allowed private individuals or firms to purchase their own telephone equipment and have it "interconnected" with an existing operating telephone system. Prior to this decision, operating telephone companies had re- fused to permit private telephone systems to be con- nected to the operating company's trunklines. The Employer was organized in 1969 shortly after the Fed- eral Communications Commission decision, and is currently engaged in the sale, installation, and main- tenance of interconnected telephone systems. The equipment, which the Employer sells, is manufac- tured by other divisions of International Telephone & Telegraph Corporation. The accounting firm of Haskins and Sells is a tenant in the Fidelity Mutual Life Building which is currently under construction in Philadelphia, Penn- sylvania. The Employer entered into a contract with Haskins and Sells for the sale, installation, and main- tenance of a TE400A electronic' switch, a cordless console, 80 straight telephone instruments, 57 6-but- 2 13 FCC 2d 420. 199 NLRB No. 66 LOCAL 98, IBEW ton telephones, and 7 call directors . The Employer assigned the work in dispute to its employees who are covered by a collective-bargaining agreement with the CWA in a nationwide bargaining unit. The contract, which was entered into on May 1, 1970, provides that CWA is "the sole and exclusive bargaining agent for employes of the Company performing installation, re- placement and maintenance operations in the United States or its possessions." On January 18, 1972,3 sever- al of the Employer's communications technicians and two supervisors reported to the jobsite to commence operations . However, they were met by representa- tives of Local 98, some of whose members were per- forming certain electrical work on the site for the electrical subcontractor. The representatives claimed the work in question and indicated that they would picket for such work. The Employer first decided to proceed with the work,4 but later-after picketing commenced and all trades refused to work-decided to leave the site in order that other construction could continue. The pickets wore signs protesting substand- ard conditions. The signs named the BRC, rather than Local 98, as protestors . In addition, the record shows that Local 98 apparently interfered with the Employer's workers (represented by CWA) attempt- ing to perform the work in dispute by locking various electrical closets, shutting off illumination, and in- structing elevator operators not to carry the Employer's workers or equipment . In late January, the Employer made its last attempt to do the work in question, and was able to work for one-half day with- out interference. However, the pickets returned on the following day and work ceased. It is estimated that Employer's work at the jobsite is now 60 percent com- plete, and that complete installation would require an additional month's work without interference. B. Work in Dispute The work in dispute herein is the installation of communications equipment and systems at the Fideli- ty Mutual Life Building in Philadelphia, Pennsylva- nia. C. Contentions of the Parties The Employer contends that there is reasonable cause to believe that Local 98 and BTC have violated Section 8(b)(4)(i) and (ii)(D) of the Act, and that the record supports its assignment of the work in dispute to its employees represented by CWA. The Employer 3 All dates mentioned herein are in 1972 unless otherwise stated. At this point, the Employer's workers heard various comments from protestors such as- "If they are going to work they better wear hard hats," and "ITT cable makes good scrap. It brings a good price in the City of Philadelphia " 497 cites considerations of area, company, and industry practice, efficiency and economy of operations, skill, and its collective-bargaining agreement with CWA in support of its assignment. In addition, the Employer and the CWA urge that the Board's order in this proceeding encompass more than the immediate pro- ject. On the merits, the CWA's position is essentially the same as that of the Employer. Local 98 and the BTC assert that their motion to quash the hearing, which the Hearing Officer reserved action on for the Board, should be sustained. In sup- port of this assertion, counsel for both of the above unions disclaimed the work in dispute in his opening statement at the hearing. In addition to claiming that there is no jurisdictional dispute, counsel also con- tends that BTC was in no way involved in any dispute, and that Local 98 was engaged in a dispute solely concerning substandard working conditions on the jobsite. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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 oc- curred. As discussed above, the record shows that Local 98 threatened to picket and did in fact picket because the Employer refused to assign the work in dispute to its members. The record also discloses that the pickets on the site carried signs naming the BTC, and not Local 98, as protestors in the instant dispute. Counsel for both Local 98 and BTC disclaimed the work in dispute in his opening statement at the hearing. He also asserted that there was never a jurisdictional dis- pute and that the picketing was only in protest of substandard wages and conditions. Although the evi- dence discloses that there was a demand for the work in dispute, and that picketing did follow such a de- mand, there was testimony indicating that Local 98 representatives stated that they were protesting wages and conditions paid by the Employer as being sub- standard in the Philadelphia area. On the record as a whole, and without ruling on the testimony in issue, we are satisfied that there is reasonable cause to be- lieve a violation of Section 8(b)(4)(D) has occurred. Based on the record before us, there is at present no agreed-upon method for the voluntary adjustment of this dispute. Under these circumstances, we find that it will effectuate the policies underlying Sections 10(k) and 8(b)(4)(D) of the Act for us to determine the merits of the dispute. Accordingly, we find that this dispute is appropriate for resolution under Section 10(k) of the Act. With respect to the purported disclaimer offered 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Local 98 and the BTC, the Board has held that such disclaimers are not effective to vitiate an other- wise viable jurisdictional dispute. We hold that the disclaimer is not valid here in view of Local 98's and BTC's entire course of conduct.5 E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors .6 The Board has held that its determination of a juris- dictional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.' The following factors are relevant in making a determination of the dispute before us. 1. Certification and collective-bargaining agreements The labor organizations involved herein have not been certified by the Board, nor is there evidence indicating that a Board certification covers the work in dispute. The Employer is a party to a nationwide collec- tive-bargaining agreement with the CWA. The con- tract provides that CWA is the "sole and exclusive bargaining agent for employees of the Company per- forming installation replacement and maintenance operations in the United States or its possessions." In accordance with this agreement, the Employer has assigned the work in dispute to its employees repre- sented by CWA. The Employer is not, and never has been, party to any collective-bargaining agreement with Local 98 or with the BTC. We conclude, there- fore, that considerations of collective-bargaining his- tory and agreements favor assignment of the work to employees represented by CWA. 2. Employer, industry, and area practice With the minor exceptions noted in the footnote below, the record clearly establishes that the Employ- er has employed its own employees, who are members of the CWA, to perform all aspects of the work in dispute on a nationwide basis.' The record also indi- S Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men, and Helpers of America (Bethlehem Steel Corporation), 174 NLRB 30, 32. 6 N.L.R.B v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U.S. 573, 586. 7 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A Jones Construction Co.), 135 NLRB 1402 8 The Employer has on occasion subcontracted the "cable pulling" portion of the work to subcontractors who have employed members of the Interna- tional Brotherhood of Electrical Workers, AFL-CIO. However, the Employ- cates that it is the practice of Western Electric, the principal company that installs telephone equipment in the Philadelphia area, to use CWA members to perform the disputed work . In this regard, the testimo- ny clearly supports a finding that the work performed by the Employer's communications technicians is substantially similar to the work performed by em- ployees of Western Electric . The record also shows that the Employer's communications technicians, rep- resented by CWA, performed similar installation work at Cardo Automotive Products in Northeast Philadelphia. There is no evidence in the record which would indicate that Local 98 has ever performed the work in dispute, or any telephone installation work in the Philadelphia area. On the basis of the above find- ings, we conclude that the employer, industry, and area practice favor assignment of the work in dispute to employees represented by CWA. 3. Skills and training of employees The record clearly establishes that: (1) the Employer's communications technicians possess the necessary skills to perform the work in dispute, and (2) journeymen electricians, as represented by Local 98, are not sufficiently skilled to perform the disputed work. The record also indicates that the Employer is satisfied with the performance of the work in dispute by its communications technicians represented by the CWA. More specifically, the record indicates that the work of a communications technician, as represented by CWA, is significantly different than the work per- formed by an electrician, as represented by Local 98, in terms of the training and techniques required. This conclusion is based, in part, on testimony disclosing that a fully qualified communications technician has approximately 6 years of training, including a 4- to 6-week course in the type of equipment involved in the instant dispute, conducted by the Employer.9 Such classroom and on-the-job training includes expe- rience in the area of solid state (transistorized) circui- try. Accordingly, we find that consideration of the factors of skill and special training favor assignment of the disputed work to the employees of the Employ- er represented by CWA. 4. Efficiency and economy of operations The record indicates that an assignment of the work in dispute to Local 98 members would result in a substantial loss of economy and efficiency to the er has never subcontracted any of the work in dispute in the Philadelphia area 9 The record shows that approximately 40 percent of the Employer's com- munications technicians are fully qualified LOCAL 98, IBEW 499 Employer. More specifically, when the "cable pull- ing" portion of the work has been subcontracted out in the past, as mentioned above, the work completed has often proved unsatisfacory. In this regard, the Employer has often been forced to do major recabling work in the cases where subcontracting has been in- volved.10 Even if major recabling is not necessary, the Employer's communications technicians check the cable as a standard procedure to see that it is properly placed. The Employer takes this precaution, in part, because of its obligation to maintain and service the system for a period of time. The sales agreement be- tween the Employer and Haskins and Sells includes a provision that the Employer will maintain and service the system for a period of 5 years. We have found that maintenance requirements weigh heavily in favor of an employer's assignment, particularly when factors of training in installation and service of an employer's specific equipment are present." Such factors are pre- sent in the instant case. We find that factors of both economy and efficiency support an award of the work in dispute to employees represented by CWA. Conclusions Having considered all pertinent factors present herein, we conclude that employees represented by CWA are entitled to perform the work in dispute. This assignment is consistent with the collective-bargain- ing agreement between CWA and the Employer, em- ployer, industry, and area practice, the requisite skills and training, and the efficiency and economy of oper- ation. In addition, the Employer has been satisfied with the performance of its employees who are repre- sented by CWA. We conclude on the basis of the above factors that the Employer's assignment should not be changed. Therefore, we shall determine the existing jurisdictional controversy by awarding the work in dispute to employees of the Employer repre- 10 The Employer's director of operations stated that, whenever the cable pulling portion of the work was subcontracted out, the employees of the Employer always had some recabhng to do and , in 20 to 25 percent of the cases, had to redo a major portion of that work. 11 See, e.g., Radio-Television-Sound Technicians Local Union 1139, Interna- tional Brotherhood of Electrical Workers, AFL-CIO (Motorola Communica- tions and Electronics, Inc.), 180 NLRB 997. sented by CWA. In making this determination, we are assigning the disputed work to employees of ITT- Communications Equipment and Systems Division, who are represented by Communications Workers of America, AFL-CIO, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceed- ing. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the foregoing and the entire record in this case , the National Labor Relations Board hereby makes the following Deter- mination of Dispute: 1. Employees of ITT-Communications Equip- ment and Systems Division, who are currently repre- sented by Communications Workers of America, AFL-CIO, are entitled to perform the work of install- ing communications equipment for Haskins and Sells, a tenant in the Fidelity Mutual Life Building in Phila- delphia, Pennsylvania. 2. Local Union No. 98, International Brother- hood of Electrical Workers , AFL-CIO, and Building and Construction Trades Council of Philadelphia and Vicinity are not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force or require ITT- Communications Equipment and Systems Division to assign the above work to individuals represented by Local Union No. 98, International Brotherhood of Electrical Workers, AFL-CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute , Local Union No. 98, International Brotherhood of Electrical Workers, AFL-CIO, and Building and Construction Trades Council of Philadelphia and Vicinty shall notify the Regional Director for Region 4, in writing, whether or not they will refrain from forcing or requiring ITT- Communications Equipment and Systems Division, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to individuals repre- sented by Local Union No. 98 , International Brother- hood of Electrical Workers, AFL-CIO, rather than to employees of ITT-Communications Equipment and Systems Division , represented by Communications Workers of America , AFL-CIO.