Electrical Workers Ibew 103 (Comm-Tract)

ELECTRICAL WORKERS IBEW 103 (COMM-TRACT) International Brotherhood of Electrical Workers, AFL-CIO, Local 103 and Comm-Tract Corp. and Communications Workers of America, AFL-CIO. Case 1-CD-822 June 21, 1988 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT The charge in this Section 10(k) proceeding was filed December 14, 1987, by Comm-Tract Corp. (the Employer) alleging that the Respondent, Inter- national Brotherhood of Electrical Workers, AFL- CIO, Local 103, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees it rep- resents rather than to employees represented by Communications Workers of America, AFL-CIO (CWA). The hearing was held February 24, 1988, before Hearing Officer John T. Downs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer' s rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Employer, a Massachusetts corporation, is engaged in the business of the installation of tele- phone and data system equipment, including the in- stallation of the cabling and connections associated with that equipment, with its principal place of business in Natick, Massachusetts. During the past year, the Employer purchased and received at its Natick, Massachusetts location goods and materials valued in excess of $50,000, directly from suppliers located outside the Commonwealth of Massachu- setts. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 103 and CWA are labor organizations within the meaning of Section 2(5) of the Act.I II. THE DISPUTE A. Background and Facts of Dispute In December 1987, pursuant to a subcontract with Laantech Inc., the Employer began an instal- lation job with CWA-represented employees at the ' CWA did not appear or otherwise participate at the hearing 289 NLRB No. 42 281 Dana Farber Cancer Institute, 44 Binney Street, Boston, Massachusetts (jobsite). The employees performing the installation work are covered by a collective-bargaining agreement between CWA and the Employer effective November 8, 1987. The Employer's project manager, Roland Blair, testified that in response to rumors that Local 103 employees working at the jobsite would walk off the job and picket if the Employer's CWA-repre- sented employees performed the work in dispute, on December 11, 1987, he telephoned Local 103 business agent Charles Monahan. Blair testified that he identified himself by name and told Monahan that he worked for the Employer. Blair further tes- tified that he told Monahan that he "understood that IBEW said that if we came on the jobsite they would walk off the job and picket." According to Blair's testimony, he asked Monahan if that was true and Monahan responded in the affirmative. When Blair asked if there was anything they could do to resolve this matter between themselves, Mon- ahan allegedly responded that "the only thing that [Blair] could do was send [Monahan] a list of IBEW contractors." Monahan denied ever speak- ing to Blair or receiving a telephone call from him. The Employer's chief executive officer, John Polmonari, testified that because of rumors of po- tential jobsite problems he telephoned Monahan and Monahan told him that Local 103 would picket the job if Comm-Tract performed the work with its CWA-represented employees. Polmonari testified that Monahan did speak about community standards during the conversation and a meeting was arranged. There is conflicting testimony con- cerning what occurred at this meeting. Polmonari claimed that at the meeting Monahan repeated the threat to picket. Monahan testified that the purpose of the meeting was to determine if Comm-Tract was a community standard contractor. Monahan further testified that after reviewing the collective- bargaining agreement, pension program, and health plan, he found the Employer met community standards and indicated to Polmonari that as far as he was concerned there were no problems with Comm-Tract. Monahan claims that he told Pol- monari that he would review the matter with his boss and that if in fact there were any problems, Polmonari would hear from Monahan. As of the hearing date, there had been no work disruption or picketing activity at the jobsite. B. Work in Dispute The work in dispute involves the installation of telephone and data systems equipment, including installation of the cabling and connections associat- 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed with the equipment, at the Dana Farber Cancer Institute, 44 Binney Street, Boston, Massachusetts.2 C. Contentions of the Parties The Employer contends that the testimony of Blair and Polmonari and Local 103's conduct es- tablishes that the actions of Local 103 had an object of compelling the assignment of the disputed work to employees represented by Local 103 rather than CWA. The Employer further contends that the statements by Local 103 witnesses at the hearing in this case that, after review of the Em- ployer's contract with the CWA, they concluded the Employer meets community standards, do not constitute a disclaimer of interest in the disputed work. The Employer also contends that the work should be assigned to the CWA-represented em- ployees, arguing that the collective-bargaining agreement with CWA, economy and efficiency of operations, the skills and work involved, employer and industry practice, job impact, and employer as- signment and preference all favor such a result. The Employer asserts that because similar disputes involving the disputed work are likely to recur, the Board should remand this case for further hearing to take evidence to determine whether the jurisdic- tional award should be expanded to apply through- out the jurisdiction of Local 103 wherever employ- ees of the Employer represented by CWA perform the work in dispute. Local 103 contends that no jurisdictional dispute exists and that no threat to the Employer was made in violation of the Act. Local 103 contends that it sought information from the Employer to as- certain whether the Employer adhered to commu- nity standards and, on its determination that the Employer was a community standard contractor, advised the Employer that it was in conformity with community standards and would have no trouble with Local 103.3 2 The amended charge in this case, filed on December 30, 1987, de- scribed the work in dispute as "the installation of telephone and commu- nications equipment at the Dana Farber Institute ." The notice of hearing in this case, dated January 28, 1988, described the work in dispute as "the installation of telephone and data cables " At the hearing the Employer moved to amend the description of the work in dispute to include the above-described work. Counsel for Local 103 had been notified prior to the hearing of the Employer's proposed amendment . The Employer ex- cepted to the hearing officer's denial of the motion to amend the descnp- tion of the work in dispute. We find merit to this exception noting that the record supports such a description of the work in dispute and that Local 103 was not surprised by the amendment at the hearing and had adequate time to prepare its case with respect to the amended language. 2 Local 103 excepted to the admission of hearsay testimony of Blair as evidence of an alleged threat. Blair testified that the construction manag- er on the jobsite, McCoy, had informed him that during a visit to jobsite Monahan told McCoy that if the Employer's CWA-represented employ- ees worked on the job, the Local 103-represented employees who were also on the jobsite would walk off the job and picket. In determining whether there is reasonable cause to believe that Local 103 violated the Act, we do not rely on this hearsay testimony, but on the nonhearsay D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be established both that reasonable cause exist 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 their dispute. Regarding the latter point, the record reveals no agreed-upon method among the parties for the resolution of the dispute. Testimony was presented in this case that Local 103 threatened to walk off the jobsite and picket if the Employer's CWA-represented employees per- formed the work in dispute. Conflicting testimony was presented by Local 103 witnesses, but it is un- necessary to resolve the question of credibility in order to proceed to a determination of the dispute. In a 10(k) proceeding the Board is not required to find that the unfair labor practice alleged has oc- curred, but need only find that reasonable cause exists to believe that there has been a violation of Section 8(b)(4)(D). The Board may consider con- tradicted testimony in finding reasonable cause.4 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 and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certifications and collective -bargaining agreements There was no evidence that the CWA or Local 103 had been certified by the Board as the collec- tive-bargaining representative of the Employer's employees. The Employer does not have a collec- testimony of Blair and Polmonan regarding their resepective conversa- tions with Monahan 4 Carpenters Local 1485 (C J. Reinke & Sons), 254 NLRB 1091 (1981) ELECTRICAL WORKERS IBEW 103 (COMM-TRACT) tive-bargaining agreement with Local 103. The Employer and CWA have a current collective-bar- gaining agreement which encompasses the work in dispute. s Accordingly, we find that the factor of the collective-bargaining agreements favors an award of the work in dispute to employees repre- sented by CWA. 2. Employer preference The record indicates that the Employer would prefer to have the work in dispute which began in December 1987 completed by the employees repre- sented by the CWA because they are specifically trained in this work, are performing the work at an acceptable level of quality, and can more efficiently perform the postinstallation warranty service pro- vided by the Employer. We find that this factor favors the award of the disputed work to the em- ployees represented by CWA. 3. Area and industry practice The Employer's chief executive officer John Pol- monari testified that he was aware of at least seven other companies in the area who are in the same business as the Employer whose installation em- ployes are represented by CWA. Although the record indicates that Local 103-represented em- ployees and CWA-represented employees work side by side on some jobsites, and Local 103 has an industrywide contract with employers in the tele- communications field, Local 103 failed to introduce any evidence that this contract covers the same type of work as the work in dispute or that em- ployees represented by Local 103 have performed the same type of work as the work in dispute. Ac- cordingly, while industry practice is inconclusive, the factor of area practice favors the employees represented by GWA. 4. Relative skills The record indicates that the Employer trains its employees in the use of its own equipment and in the work in dispute. The record further indicates that the Employer's employees are capable of per- forming all aspects of the installation work and have performed the work to the Employer's satis- faction. Local 103 presented no evidence that em- ployees it represents have the specific skills that apply to the work in dispute. Rather, the record merely indicates that Local 103-represented em- ployees attend a formal education program certi- S Art 16 of that agreement entitled "WAGES AND OTHER BENE- FITS" specifies the duties of the various job classification as including, inter alia, "running cable," "reading blueprints with knowledge on how to install, test, and repair terminal and station equipment" and "ability to maintain, update and resolve problems with communication systems " 283 fled by the Commonwealth of Massachusetts in the telecommunications field. The subjects taught in this program include math, electronics, blueprint reading, telegraphy, data, alarm signal, sound, cable television, and microwave. Accordingly, this factor tends to favor an award of the disputed work to the Employer's employees represented by CWA. 5. Economy and efficiency of operations The Employer presented evidence that it is more economical and efficient to assign the work in dis- pute to its own employees who are represented by CWA than to employees represented by Local 103. By continuing to use its own employees, the Em- ployer can assign the same person who installed the system to perform postinstallation warranty maintenance and service work. The individuals per- forming the initial installation work know the loca- tion of cable routes, how the cable is run, and have general knowledge of the job which can be useful for performing postinstallation warranty service. Accordingly, we conclude that this factor favors the employees represented by CWA. Conclusions After considering all the relevant factors, we conclude that employees represented by CWA are entitled to perform the work in dispute . We reach this conclusion relying in particular on the factors of the Employer's collective-bargaining agreement, the Employer's preference, area practice, relative skills, and the economy and efficiency of the Em- ployer's operations. In making this determination, we are awarding the work to employees represent- ed by CWA, but not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding.6 6 The Employer requests that this case be remanded for further hear- ing to take evidence to determine whether this award should be expand- ed to apply throughout the jurisdiction of Local 103 whenever employ- ees of the Employer represented by the CWA perform the work in dis- pute At the hearing the Employer attempted to introduce evidence that Local 103's conduct in violation of Sec 8(b)(4)(D) at the Dana Farber site in December 1987 was part of a broad pattern of such activity in other worksites in the Boston area Specifically, the Employer made an offer of proof and alleged that Local 103 engaged in similar activity against the Employer at the Boston University Medical Center site in Boston in 1986 which resulted in actual picketing and was currently en- gaging in similar illegal activity at another worksite in Boston involving the Employer, the Rowe's Wharf project The Board has previously held that it will restrict the scope of its determination to a specific jobsite unless there is evidence that similar disputes may occur in the future Painters Local 636 (Plaza Glass), 214 NLRB 912, 915 (1974) The Board has not previously determined jurisdictional disputes involving the Em- ployer and Local 103 Furthermore, there is no evidence that Local 103 has claimed similar work to be performed by the Employer in the future Accordingly, even assuming arguendo that the hearing officer should have received the testimony that was the subject of the Employer 's offer of proof, we find the evidence insufficient to show that the dispute is a regularly recurring one and that Local 103 has a propensity to engage in Continued 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Comm-Tract, Inc., who are rep- resented by Communications Workers of America, AFL-CIO, are entitled to perform the installation of telephone and data systems equipment, including installation of the cabling and connections associat- ed with the equipment, at the Dana Farber Cancer prohibited 8(bX4XD) conduct. Therefore, we deny the Employer's re- quest for a remand and limit this determination to the particular contro- versy that gave rise to this proceeding Iron Workers Local 350 (Cornell & Ca), 271 NLRB 1182, 1185 (1984). Institute, 44 Binney Street, Boston, Massachusetts jobsite. 2. Local 103, International Brotherhood of Elec- trical Workers, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Comm-Tract, Inc. to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Local 103, International Brotherhood of Electrical Workers, AFL-CIO shall notify the Regional Director for Region 1 in writing whether it will refrain from forcing the Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.