Electrical Workers Local 98 (Lucent Technologies)

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1118 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1118
International Brotherhood of Electrical Workers,
Local Union No. 98 and Lucent Technologies
and Communications Workers of America,
AFL–CIO.1 Case 4–CD–1032
April 30, 2003
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
The charge in this Section 10(k) proceeding was filed on
June 14, 2000, by Lucent Technologies, Inc. (the Em-
ployer) alleging that the Respondent, International
Brotherhood of Electrical Workers, Local Union No. 98
(Local 98), violated Section 8(b)(4)(D) of the Act by
engaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees Local
98 represents rather than to the Employer’s own employ-
ees who are represented by the Intervenor, Communica-
tions Workers of America, AFL–CIO (CWA). The hear-
ing was held on December 14 and 28, 2000, before hear-
ing officer Donna D. Brown.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The Employer and CWA stipulated that the Employer,
a New Jersey corporation, is engaged in the business of
installing telecommunications equipment, and that during
the 12-month period preceding the hearing the Employer
purchased and received goods valued in excess of
$50,000 directly from points located outside the State of
New Jersey, and received gross revenues in excess of
$500,000.2 Based on record testimony, the Board finds
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. All parties
stipulated that Local 98 and CWA are labor organiza-
tions within the meaning of Section 2(5) of the Act.

1 At the hearing, the name of the Intervenor as it appeared on the no-
tice of hearing was amended by deleting the term “District 13.”
2 The attorney for Local 98 was not present on the first day of the
hearing when the Employer and CWA entered into this stipulation. On
the second day of the hearing, the attorney for Local 98 stipulated that
the Employer was an employer engaged in commerce within the mean-
ing of the Act.
II. THE DISPUTE
A. Background
The Employer has a contract with Sprint Communica-
tions (Sprint) to install PCS CDMA minicell equipment
for Sprint’s customers.3 Sprint purchases the minicell
equipment from the Employer. During the summer of
2000,4 the Employer was scheduled to install minicell
equipment at a Sprint project at the First Union Center, a
large convention hall in Philadelphia, Pennsylvania. The
Employer assigned the minicell installation work to its
communication equipment installers who are represented
by CWA. The Employer was scheduled to begin the
disputed work on June 14. At all material times, the
Employer and CWA have been parties to a collective-
bargaining agreement covering the Employer’s installers.
Sprint hired Specialty Constructors as the general con-
tractor on the First Union Project. Specialty subcon-
tracted the electrical work to Adams Electric which em-
ployed members of Local 98. Sprint was not aware of
the agreement between Specialty and Adams. The Em-
ployer does not have a contract with Local 98.
On June 9, when the minicell equipment was delivered
to the jobsite, the Employer’s installers were there to
move it from the dock to the room where it would be
installed. However, their supervisor instructed them not
to move it. Instead, Adams Electric employees repre-
sented by Local 98 moved the equipment. After the
equipment had been moved, the Employer’s installers
noticed that someone had written “Lucent scabs” and
other derogatory comments on several of the boxes.
Thereafter, Joseph Rowland, an electrician employed by
Adams Electric and Local 98’s job steward at the First
Union Center jobsite,5 asked to see the Employer’s in-
stallers’ union cards or proof that they were paying union
dues. Rowland advised the Employer’s installers that the
First Union Center had promised the disputed work to
Local 98. The Employer’s installers secured the equip-
ment and left the jobsite.
The record establishes that on June 13, CWA represen-
tative Bruce Davis met with both First Union Center
Building Manager Arthur Chu and with Local 98 Busi-
ness Agent Larry DelSpechio. At some point during this
meeting, DelSpechio stated that Local 98 had been told
that Local 98 would be assigned all the cabling work at
the First Union Center. DelSpechio rejected Davis’ sug-
gestion that CWA and Local 98 share the disputed work.
3 At the hearing, “CMDA” set out in the notice of hearing was
amended to read “CDMA.”
4 All dates are in 2000 unless otherwise stated.
5 Rowland testified that as job steward his primary responsibility
was to protect the jurisdiction of Local 98. (Tr. 93.)
338 NLRB No. 173
ELECTRICAL WORKERS LOCAL 98 (LUCENT TECHNOLOGIES) 1119
Davis testified that DelSpechio stated that Local 98
would put up a picket line if the Employer proceeded to
install the minicells. DelSpechio denied that he made
such a statement.
Thereafter, Chu advised Sprint that because of Local
98’s contract with the First Union Center, Local 98
would have to perform the disputed work. As a result,
Sprint hired an outside contractor to come in and instruct
the Local 98-represented electricians on how to install
the Sprint equipment.6 After the Local 98-represented
electricians completed the installations, the Employer’s
installers were assigned to perform the integration work.7
The work in dispute was completed by June 16. How-
ever, the Employer will continue to perform minicell
installations for various customers in the Philadelphia
area.
B. Work In Dispute
The disputed work consists of the installation of PCS
CDMA minicell equipment and related wiring by Lucent
Technologies, Inc., wherever the geographical jurisdic-
tion of International Brotherhood of Electrical Workers,
Local Union No. 98 and Communications Workers of
America, AFL–CIO, coincide.
C. Contentions of the Parties
The Employer and CWA contend that there is reason-
able cause to believe that Local 98 violated Section
8(b)(4)(D) of the Act. The Employer and CWA also
contend that the work in dispute should be assigned to
the Employer’s employees represented by CWA based
on collective-bargaining agreements, employer prefer-
ence and past practice, area practice, relative skills, and
economy and efficiency of operations. The Employer and
CWA further contend that Local 98 has a proclivity to
violate the Act, and that therefore the Board should enter
a broad order that is coextensive with Local 98’s geo-
graphical jurisdiction. In support, the Employer and
CWA cite to the Board’s decisions in Electrical Workers
Local 98 (Lucent Technologies), 324 NLRB 226 (1997),
and Electrical Workers Local 98 (Lucent Technologies),
324 NLRB 230 (1997), other 10(k) proceedings that in-

6 The outside contractor was not to touch any of the equipment, but
was to provide instructions to the Local 98-represented employees to
make sure that the installations were performed correctly.
7 Walter Butterworth, a senior wireless implementation engineer
employed by Sprint, testified that once the equipment was installed,
“then Lucent’s people came in and did what we call integration . . .
which is the downloading of the software[.]” (Tr. 49.) Butterworth
further testified that Lucent’s employees performed the integration
work because only Lucent had the proprietary rights to the computer
program that was installed and that no one objected to Lucent’s em-
ployees performing the integration work because it was considered
computer programming rather than electrical work. (Tr. 50.)
volved the same parties (i.e., Lucent, CWA, and Local
98), in which the Board issued broad orders against Lo-
cal 98. Finally, CWA contends that the Board should
award to employees represented by CWA all disputed
work where the geographical jurisdiction of CWA and
Local 98 overlap “and all similar work in that area of
geographical overlap, whether Lucent be the employer or
some other entity.”
Local 98 contends that the Board lacks jurisdiction un-
der Section 10(k) to hear this matter and that it should
therefore quash the notice of hearing. Local 98 asserts
that the record does not support a conclusion that reason-
able grounds exist to believe that Local 98 violated Sec-
tion 8(b)(4)(D) because there is no credible evidence that
Local 98 ever threatened to picket the First Union Center
jobsite if Local 98 was not awarded the work in dispute.
If, however, the Board decides the merits of the dis-
pute, Local 98 contends generally that “[t]he majority of
applicable factors” favors an award of the work in dis-
pute to Local 98. Local 98 further asserts that only one
factor, employer preference, conclusively favors CWA.
However, Local 98 argues that the factor of employer
preference is not decisive here because it conflicts with
the overall requirement, “as per the Center agreement,”
that all such work be performed by Local 98.8 Local 98
further contends that while both groups of employees are
capable of performing the work in dispute, the record
shows that only Local 98-represented employees have
been performing this work within the confines of the
First Union Center. Local 98 further asserts that while
both groups of employees have received training, the
record shows that Local 98 electricians receive “vastly
superior training.”9
Finally, Local 98 contends that a broad order is not ap-
propriate because the dispute here does not arise from
any attempt to “steal” work from CWA on a citywide
basis, but rather is limited to the First Union Center and
arises only because of the existence of the agreement
between the Center and Local 98. Thus, Local 98 asserts
that the dispute here does not involve work that will be a
continuing source of controversy. Further, even if an-
8 DelSpechio testified that Local 98 had an agreement with the First
Union Center that covered all electrical work to be performed at the
jobsite. However, in response to the hearing officer’s question as to
whether, under that agreement, the minicell work should have been
done by Local 98, DelSpechio responded “Ma’am, I couldn’t answer
that. I couldn’t say like would they do it or wouldn’t they do it. All I
know is they are the best qualified to do it, in my opinion.” (Tr. 125.)
No agreement between Local 98 and the First Union Center was en-
tered into evidence.
9 In support of this assertion, Local 98 relies on the Board’s observa-
tion in Electrical Workers Local 98 (Lucent Technologies), 324 NLRB
at 228, that the record in that case “show[ed] that Local 98 maintains
highly respected apprenticeship and electrical journeymen programs.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120
other work dispute arises in the future between CWA and
Local 98 at the First Union Center, Local 98 contends
that there is nothing that would indicate that the dispute
over the work is so widespread or pervasive as to require
a broad order. However, if the Board does find that a
broad award is appropriate here, Local 98 contends that
there is no justification for granting an award that would
include any other employer except Lucent, the only em-
ployer involved in this dispute.
D. The Board’s Authority to Determine Dispute
Before the Board may determine the dispute pursuant
to Section 10(k) of the 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 on a
method for the voluntary adjustment of the dispute.
The unfair labor practice charge in this proceeding al-
leges in pertinent part that Local 98 violated Section
8(b)(4)(ii)(D) by threatening Lucent to force it to assign
work to members of Local 98 rather than to Lucent’s
own employees who are members of CWA. Section
8(b)(4)(ii)(D) states in pertinent part that:
It shall be an unfair labor practice for a labor organiza-
tion or its agents . . . (ii) to threaten . . . any person en-
gaged in commerce or in an industry affecting com-
merce, where . . . an object thereof is: . . . (D) forcing or
requiring any employer to assign particular work to
employees in a particular labor organization . . . rather
than to employees in another labor organization . . . .
Thus, a showing of reasonable cause to believe that Section
8(b)(4)(ii)(D) has been violated requires evidence of a pro-
hibited threat to a person engaged in commerce. As applied
in this case, the evidence must establish reasonable cause to
believe that DelSpechio threatened that Local 98 would put
up a picket line if its members were not given the minicell
installation work, and that this threat was communicated to
a person engaged in commerce, here First Union Center
Building Manager Chu.
As set out above, the evidence establishes that on June
13 CWA Representative Davis met with First Union
Center Building Manager Chu and Local 98 Business
Agent DelSpechio. Davis testified that DelSpechio
stated that Local 98 would put up a picket line if the
Charging Party proceeded to install the minicells. Al-
though DelSpechio denied making such a statement, as
the Board explained in Theatrical Protective Union Lo-
cal 1, 255 NLRB 955, 957 (1981) (footnote omitted),
“[t]he Board is not charged with finding that a violation
did in fact occur, but only that reasonable cause exists for
finding such a violation. A conflict in testimony does
not prevent the Board from proceeding with a determina-
tion of the dispute under Section 10(k) of the Act.”
Davis’ testimony provides reasonable cause to believe
that DelSpechio threatened that Local 98 would put up a
picket line if its members were not given the minicell
installation work. Furthermore, although the evidence
does not conclusively prove that Chu was present during
the entire meeting and that he heard everything said by
DelSpechio, the evidence is sufficient to establish rea-
sonable cause to believe that Chu heard DelSpechio’s
threat. Accordingly, without needing to resolve with
certainty either the conflict in the testimony of Davis and
DelSpechio or the question of whether Chu heard Del-
Spechio’s alleged threat, we find that there is reasonable
cause to believe that a violation of Section 8(b)(4)(ii)(D)
has occurred. Finally, the parties stipulated that there is
no voluntary method of adjustment of the work dispute
that would be binding on all the parties.
Having found that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred and
that there exists no agreed-on method for the voluntary
adjust of the dispute within the meaning of Section 10(k)
of the Act, we conclude that the dispute is properly be-
fore the Board for determination.
E. Decision and Analysis
The grant of authority in Section 10(k) for the Board to
“hear and determine” jurisdictional disputes requires the
Board to make an affirmative award of the disputed work
to one of the groups of employees involved in the dis-
pute. NLRB v. Electrical Workers Local 1212 (Columbia
Broadcasting), 364 U.S. 573 (1961). While the Act does
not set out the standards the Board is to apply in making
this determination, the Supreme Court explained that
“[e]xperience and common sense will supply the grounds
for the performance of this job which Congress has as-
signed the Board.” NLRB v. Electrical Workers, 364
U.S. at 583. Consistent with the Court’s opinion, the
Board announced in Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402, 1410–1411 (1962), that
in making the determination that the Supreme Court
found was required by Section 10(k), it would consider
“all relevant factors,” and that its determination in a ju-
risdictional dispute would be an act of judgment based
on common sense and experience, reached by balancing
the factors involved in a particular case.
We have considered the following factors, which we
find relevant in the context of the current dispute and, for
the reasons set forth more fully below, we conclude that
the employees represented by CWA are entitled to per-
form the work in dispute. In making this determination,
we emphasize that we are awarding the work to employ-
ees represented by CWA, not to that union or its mem-
bers.
ELECTRICAL WORKERS LOCAL 98 (LUCENT TECHNOLOGIES) 1121
1. Certifications and collective-bargaining agreements
The Employer and CWA have an existing collective-
bargaining agreement covering the installation of the
minicells in dispute. Local 98 does not have a collective-
bargaining agreement with the Employer. Accordingly,
since the collective-bargaining agreement between the
Employer and CWA specifically covers the work in dis-
pute, this factor favors an award of the disputed work to
employees represented by CWA.
2. Company preference and past practice
During the calendar year preceding the hearing, the
Employer performed approximately 100 minicell instal-
lations on jobs in the Philadelphia area. On each of these
jobs, the Employer assigned the minicell installation
work to its own installers. The Employer also used its
own installers to perform similar minicell installations at
the First Union Center for Verizon Cellular and Comcast
Cellular at about the same time as that of the Sprint in-
stallations.10 During this same time period, the Employer
installed equipment for Sprint on 177 jobs, and, in the
five years prior to the hearing, the Employer installed
equipment for Sprint on 458 jobs.11 During the past 15
years, the Employer has assigned all of its installation
work to its own installer employees. There is no evi-
dence that employees represented by Local 98 have per-
formed a comparable amount of the work in dispute.
The Employer prefers to assign the work in dispute to
employees represented by CWA consistent with the
longstanding practice of assigning such work to those
employees. Accordingly, we find that this factor favors
an award of the disputed work to employees represented
by CWA.
3. Relative skills
The Employer’s installers receive training that covers
the installation of the Employer’s equipment. The Em-
ployer also has a commitment with CWA to provide each
employee approximately 40 hours of formal training
each year. There is no evidence that employees repre-
sented by Local 98 possess comparable skills or training

10 Thus, contrary to Local 98’s assertion in its posthearing brief that
only Local 98-represented employees had performed the work in dis-
pute at the First Union Center jobsite, the Employer’s own CWA-
represented employees have performed the work in dispute at the Cen-
ter.
11 Butterworth testified that the Employer had performed the 458
jobs for Sprint over the last 5 years. (Tr. 39.) While Scott Heim, a
Lucent operations supervisor, testified generally that Lucent had done
approximately 500 installations for Sprint over the last 4 years (Tr. 24),
we rely on Butterworth’s specific testimony to find that Lucent had
performed 458 installations. Since Butterworth further testified with
specificity that Lucent had performed those installations over the last 5
years, we rely on his specific testimony in this regard to find that the
installations took place over a 5-year period.
to perform the work in dispute.12 This factor favors an
award of the work in dispute to employees represented
by CWA.
4. Economy and efficiency of operations
The evidence establishes that the Employer’s own em-
ployees represented by CWA are familiar with the work
in dispute and that this work requires particularized train-
ing. There is no evidence that assignment of the work to
employees represented by Local 98 would be as eco-
nomical and efficient. Further, the services of the Em-
ployer’s CWA-represented employees could not be dis-
pensed with, even if the work in dispute were awarded to
IBEW Local 98-represented employees. In this regard,
the evidence establishes that the Employer’s employees
represented by CWA had to come to the First Union
Center to perform “integration” work (i.e., the download-
ing of software) once the minicell system had been in-
stalled because, as explained at footnote 7 above, the
Employer’s own employees are required to perform the
integration work. Thus, the fact that the Employer’s own
CWA-represented employees could do all the work in-
volved in the installation of the equipment represents yet
another reason why it would be economical and efficient
to award the work in dispute to the Employer’s CWA-
represented employees. Accordingly, this factor favors
an award of the disputed work to employees represented
by CWA.
Conclusion
For the foregoing reasons, we conclude that employees
represented by CWA are entitled to perform the work in
12 As noted above at fn. 9 and accompanying text, Local 98 relies on
certain language in Electrical Workers Local 98 (Lucent Technologies),
324 NLRB at 228, to contend in its posthearing brief that Local 98
electricians receive “vastly superior training” to that of the Employer’s
CWA-represented employees. Contrary to Local 98’s assertion, we
find that the language relied on by Local 98, taken in context, does not
support and, indeed, undercuts Local 98’s assertion that Local 98-
represented employees receive “vastly superior training” as to the work
in dispute. The Board stated in Electrical Workers Local 98 (Lucent
Technologies), 324 NLRB at 228 (emphasis added):
The record also shows that Local 98 maintains highly respected ap-
prenticeship and electrical journeymen programs. However, as Local
98 Business Manager Dougherty acknowledged, many of Local 98’s
own courses are specifically designed to handle a specific contractor’s
work. Dougherty also acknowledged that the nature of the telecom-
munications field often calls for training designed to handle a specific
company program. It is evident, therefore, that the training and work
experience furnished by the Employer [Lucent] to its own CWA-
represented employees is more specifically designed for the Em-
ployer’s own . . . jobs. Accordingly, as their skills and training are
adapted toward the Employer’s wiring operations to a degree greater
than those of employees represented by Local 98, we find that this
category favors an award of the work in dispute to the Employer’s
own employees represented by CWA.
The record in the present case is not to the contrary.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122
dispute. We reach this conclusion relying on the factors
of collective-bargaining agreements, company preference
and past practice, relative skills, and economy and effi-
ciency of operations.
F. Scope of the Award
The Employer and CWA seek a broad award applica-
ble to all minicell installation work performed by the
Employer within all geographical areas in which the ju-
risdiction of CWA and Local 98 coincide. They note
that the Board has previously found that a broad award
was warranted in similar 10(k) proceedings involving the
same parties and contend that Local 98 has continued to
demonstrate a proclivity to engage in the kind of conduct
giving rise to the present proceeding. When a union
demonstrates a proclivity to engage in unlawful conduct
and there is an indication that the dispute regarding an
employer’s work is likely to recur, the Board will issue
an award broad enough to encompass the geographical
area in which an employer does business and in which
the jurisdictions of the competing unions coincide.
Plumbers Local 155 (Allied/Hussman), 222 NLRB 796
(1976).
In Electrical Workers Local 98 (Lucent Technologies),
324 NLRB 226 (1997), and Electrical Workers Local 98
(Lucent Technologies), 324 NLRB 230 (1997), parallel
10(k) proceedings, the Board found that reasonable cause
existed to believe that Local 98 violated Section
8(b)(4)(D) with regard to disputes between Local 98 and
CWA concerning, respectively, the Employer’s installa-
tion of telecommunications wiring and its installation of
telephone switching systems. In both those proceedings,
Local 98 claimed the work in dispute and then engaged
in picketing to prevent the Employer’s CWA-represented
employees from performing that work. Although the
work in dispute in those cases is not identical to the work
in dispute here, they demonstrate a proclivity on the part
of Local 98 to engage in unlawful conduct in order to
obtain work in dispute performed by the Employer. The
cases also demonstrate that there is a continuing contro-
versy between Local 98 and CWA regarding the Em-
ployer’s installation of various forms of telecommunica-
tions equipment. In these circumstances, which show a
likelihood of recurring disputes and a proclivity to en-
gage in unlawful conduct, we find it appropriate to make
a determination covering assignment of the work in dis-
pute in the geographical area in which the Employer does
business and in which the geographical jurisdictions of
Local 98 and CWA coincide.13
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Lucent Technologies, Inc., repre-
sented by the Communications Workers of America,
AFL–CIO, are entitled to perform the work of installing
PCS CDMA minicell equipment and related wiring in-
stalled by Lucent Technologies, Inc., wherever the geo-
graphical jurisdiction of International Brotherhood of
Electrical Workers, Local Union No. 98 and Communi-
cations Workers of America, AFL–CIO, coincide.
2. International Brotherhood of Electrical Workers,
Local Union No. 98 is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require Lu-
cent Technologies, Inc., to assign the disputed work to
employees represented by it.
3. Within 10 days from this date, International Broth-
erhood of Electrical Workers, Local Union No. 98, shall
notify the Regional Director for Region 4 in writing
whether it will refrain from forcing Lucent Technologies,
Inc., by means proscribed by Section 8(b)(4)(D), to as-
sign the disputed work in a manner inconsistent with this
determination.

13 As noted above, CWA contends in its posthearing brief that the
Board should award to CWA-represented employees all disputed work
where the geographical jurisdiction of CWA and Local 98 overlap “and
all similar work in that area of geographical overlap, whether Lucent be
the employer or some other entity.” We find this contention without
merit. As the Board stated in Plumbers Local 345, 210 NLRB 22, 25
(1974) (fn. omitted):
The Board has previously held that it will not restrict the scope of its
determination to a specific jobsite if there is evidence that similar dis-
putes may occur in the future. However, to issue an order involving
other employers who have not been served or been given notice of this
10(k) proceeding and who have not had an opportunity to participate
or give evidence is, in these circumstances, in our view inadvisable.