Electrical Workers Local 98 (Swartley Brothers)

National Labor Relations Board - Board Decisions

Sep 12, 2002

337 N.L.R.B. 1270 (N.L.R.B. 2002)

1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local Union No. 98, AFL–CIO and Swartley
Brothers Engineers, Inc. Case 4–CD–1079
September 12, 2002
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The charge in this Section 10(k) proceeding was filed
on January 11, 2002, by Swartley Brothers Engineers,
Inc. (Swartley Brothers or the Employer), alleging that
the Respondent, International Brotherhood of Electrical
Workers, Local Union No. 98, AFL–CIO (Local 98 or
the Union), violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed activity
with an object of forcing the Employer to assign certain
work to employees it represents rather than to its own
unrepresented employees. The hearing was held on May
2, 2002, before Hearing Officer Anne C. Ritterspach.
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
Swartley Brothers, a Pennsylvania corporation with its
principal place of business in Lansdale, Pennsylvania, is
an electrical contractor engaged in the commercial and
residential construction industries. During the 12 months
preceding the hearing, Swartley Brothers provided ser­
vices valued in excess of $50,000 directly to customers
located outside the Commonwealth of Pennsylvania.
The parties stipulate, and we find, that Swartley Brothers
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Local 98 is a labor or­
ganization within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Swartley Brothers is an electrical contractor that per-
forms industrial, commercial, residential, and cellular
electrical work in various Pennsylvania counties, includ­
ing Philadelphia, Bucks, Chester, Delaware, and Mont­
gomery. Swartley Brothers has been in business since
1928, and its employees have never been represented by
a labor organization.
In 2001, Cello Partnership d/b/a Verizon Wireless
hired general contractor Russell Palermo Construction
(Palermo) to construct and install cellular communica­
tions facilities on the roof of the Riverside Presbyterian
Apartments, 158 North 23rd Street, in the city of Phila­
delphia (23rd Street project). Palermo in turn hired
Swartley Brothers to perform the electric work on the
23rd Street project. The electric work encompassed in-
stalling a 200 amp, single-phase feeder with a metered
socket on the first or ground-level floor to a communica­
tions shelter built on the roof, and included the installa­
tion of conduits for phone wires and a grounding conduc­
tor.
On January 4, 2002, union-represented crane operators
and operating engineers, who were employees of other
subcontractors, were on site at the 23rd Street project
preparing to lift structural steel to the roof of the apart­
ment building to construct the new communications shel­
ter. Swartley Brothers’ employees were not scheduled to
work that day. Some time between 10 and 11 a.m., Lo­
cal 98 business agent, Ray Della Vella, came to the 23rd
Street project and struck up a conversation with Pal­
ermo’s field supervisor, Richard Cushman. Della Vella
asked Cushman the identities of the subcontractors that
had been hired to perform the work on the site, and when
Cushman told Della Vella that Swartley Brothers was the
electrical subcontractor, Della Vella reacted antagonisti­
cally. According to Cushman, Della Vella became irate
and told Cushman that Swartley Brothers was a nonunion
contractor and that “he’s not supposed to be doing elec­
tric work in the City of Philadelphia.” Cushman subse­
quently informed Della Vella that no electricians were
actually on site that day, and that a union electrical con-
tractor had been called by Swartley Brothers to come to
the site that day to help defuse the situation. Della Vella
responded that neither of those factors made a difference
to him, and that “it’s just not going to happen today,”
“it’s over.”
After Della Vella learned from Cushman that Swartley
Brothers was the electric subcontractor on the job, Della
Vella approached the crane operator and the operating
engineers and spoke with them. No witness testified to
the content of Della Vella’s conversations with those
employees. However, following the brief conversation,
the employees stopped working after completing the
immediate task they were performing, which was lifting
and fastening structural steel to the roof. After speaking
with the union-represented employees, Della Vella went
to his car, removed some placards, wrote on them, and
began picketing an entrance to the 23rd Street project
carrying a sign. A short while later, four other people—
not employees at the 23rd Street project—arrived and
joined Della Vella’s picketing.
While Della Vella and his colleagues were picketing,
Verizon construction engineer, Peter Burke, approached
Della Vella to speak with him about the situation in an
effort to resolve it. Burke testified that Della Vella stated
that he was “tired of Swartley coming in here in the
cloak of darkness and doing this work” and that “this is
the straw that broke the camel’s back and this can’t be
337 NLRB No. 187
ELECTRICAL WORKERS IBEW LOCAL 98 (SWARTLEY BROS. ENGINEERS) 1271
tolerated anymore.” Burke asked how he could address
Della Vella’s problem, and Della Vella responded that
the problem would go away if Burke would write a letter
on Verizon letterhead stationery stating that Verizon
would only use employees represented by Local 98 on its
jobs within Local 98’s jurisdiction. Burke told Della
Vella that Verizon was not opposed to using unionized
contractors, but that Verizon uses a competitive bidding
process to award jobs to subcontractors, and Swartley
Brothers had successfully competed for the electrical
work on the 23rd Street project. Burke and Della Vella
did not come to an agreement that day about the use of
Swartley Brothers on the 23rd Street project, and when
Burke left the site at approximately 3 p.m., Della Vella
and his 4 colleagues were still picketing. Following the
cessation of work on the site that day, work did not re­
sume on the 23rd Street project until January 14, 2002,
when, either at Verizon’s or Palermo’s request, Carr &
Duff, a Philadelphia-area electrical contractor that em­
ployed Local 98-represented employees, resumed the
unfinished electric work that was to be performed by
Swartley Brothers.
B. The Work in Dispute
The notice of hearing describes the work in dispute as
“[t]he installation by Swartley Brothers Engineers, Inc.,
of 200 amp single phase services, conduits and the wires
therein, for power, telephones and ground conductors
within Philadelphia, Bucks, Chester, Delaware, and
Montgomery Counties, Pennsylvania.”1
C. Contentions of the Parties
Swartley Brothers contends that Local 98’s oral claims
for the work, accompanied by picketing and a demand
for a letter agreeing to use only Local 98-represented
employees, is sufficient basis for the Board to have rea­
sonable cause to believe that Section 8(b)(4)(D) of the
Act has been violated. With regard to the merits of the
dispute, Swartley Brothers asserts that the work should
be awarded to its employees based on its preference to
utilize its own employees, its past practice of so doing,
the fact that it has never been a signatory to an agreement
with Local 98, and the economy and efficiency of assign­
ing work to employees already on its payroll.
Local 98 contends that the jurisdictional prerequisites
have not been met in this case because its picketing at the
23rd Street project was area standards picketing rather
1 Swartley Brothers and Local 98 declined to stipulate to the descrip­
tion of the work in dispute. It is apparent, however, that their dis­
agreement is with the scope of the award, which we address below, not
the description of the disputed work. We find that the record supports
the notice of hearing’s description of the work in dispute, and we ad-
dress the relevant geographic area of the disputed work below.
than jurisdictional picketing, and therefore Local 98 has
not engaged in any proscribed activity. Local 98 further
argues that a broad, areawide award is inappropriate in
this case because this matter does not involve a continu­
ous source of controversy between the parties. Finally,
Local 98 did not put on any evidence at the hearing nor
make argument in its brief addressing the relative merits
of assigning the work to either employee group.
D. Applicability of the Statute
Before the Board may proceed with determining a dis­
pute pursuant to Section 10(k) of the Act, it must be sat­
isfied that: (1) there are competing claims for the work;
(2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated; and (3) the parties have not
agreed on a method for the voluntary adjustment of the
dispute.2 These jurisdictional prerequis ites have been
met in this case.
On January 4, 2002, Local 98 business agent, Della
Vella, told Verizon’s general contractor that Swartley
Brothers was a nonunion contractor and should not be
doing electric work in the City of Philadelphia, that “it’s
just not going to happen today,” and “it’s over.” Della
Vella also spoke with the other employees on the jobsite
that day, following which those employees ceased work­
ing. Della Vella then established a picket line at the en-
trance to the jobsite.3 Finally, when asked how to re-
solve the situation, Della Vella demanded a letter from
Verizon stating that Verizon would only use employees
represented by Local 98 on its jobs within Local 98’s
jurisdiction. On this basis, we conclude that there are
competing claims to the work,4 and we find reasonable
cause to believe that Section 8(b)(4)(D) of the Act has
been violated. See, e.g., Electrical Workers Local 98
(Lucent Technologies) , 324 NLRB 230 (1997) (oral
claims for work accompanied by picketing at the work-
2 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422
(2001); Teamsters Local 259 (Globe Newspaper Co .), 327 NLRB 619,
622 (1999); Laborers Local 113 (Super Excavators), 327 NLRB 112,
114 (1998).
3 There is no evidence that this picketing was area standards rather
than jurisdictional, as Local 98 contends in its brief. Cf. IBEW Local
98 (Fairfield Co.), 337 NLRB 793 (2002) (record established that the
union’s picketing had object of protesting alleged destruction of area
standards; peaceful area standards picketing does not constitute a com­
peting claim for work).
4 At the hearing, counsel for the Union denied that Local 98 claimed
the work in dispute. Based on Della Vella’s statement and actions at
the 23rd Street project on January 4, 2002, however, we conclude that
Local 98 did, in fact, claim the work in dispute. In addition, perform­
ance of the electric work by the Employer’s unrepresented employees
“is evidence of a claim to that work by those employees, even absent an
explicit claim.” Carpenters Local 13 (Millennium Construction), 336
NLRB 1002, 1002 (2001). Thus, there are competing claims for the
work, and this jurisdictional prerequisite is met.
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
site so as not to allow the employer’s employees to per-
form the work constitute sufficient basis to find reason-
able cause that a violation of Section 8(b)(4)(D) has oc­
curred); Electrical Workers Local 400 (E.T. Electrical
Contractors) , 285 NLRB 1149 (1987) (statements that
construction project is a “union job” and that nonunion
electrical contractor should remove its own employees,
accompanied by pickets and demand for letter of agree­
ment to be bound to union’s agreement with multiem­
ployer association, constitutes sufficient basis to find
reasonable cause that a violation of Section 8(b)(4)(D)
has occurred). Furthermore, the parties stipulated, and
we so find, that there is no method for voluntary adjust­
ment of the dispute to which all parties are bound. Ac­
cordingly, we find that the Board has jurisdiction to re-
solve this dispute.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma­
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co­
lumbia 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 ex­
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J.A. Jones Con­
struction), 135 NLRB 1402, 1410–1411 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining agreements
There is no record evidence that Local 98 has been
certified by the Board, nor that a Local 98 collective-
bargaining agreement with any party covers the work in
dispute. In addition, the record shows that Swartley
Brothers has never employed employees represented by a
union certified by the Board nor has it been a party to
any collective-bargaining agreement. Accordingly, we
find that the factors of certification and collective-
bargaining agreement do not favor awarding the disputed
work to either group of employees.
2. Employer preference
Robert Swartley, the owner of Swartley Brothers, testi­
fied that the Employer prefers to assign the work in dis­
pute to its own employees. Local 98 does not dispute the
Employer’s preference in this matter. Accordingly, we
find that the factor of employer preference favors an
award of the disputed work to the Swartley Brothers’
employees.
3. Employer past practice
Swartley testified that his past practice has been to as-
sign electric work to the employees of Swartley Brothers,
and Local 98 does not dispute this. Thus, we find that
the factor of past practice favors an award of the disputed
work to Swartley Brothers’ employees.
4. Area and industry practice
There is no record evidence regarding the practice of
other area contractors in assigning work similar to the
work in dispute. Therefore, we conclude that area and
industry practice does not favor an award of the work in
dispute to either employee group.
5. Economy and efficiency of operations
There is no record evidence demonstrating that if the
disputed work was assigned to a particular employee
group, the Employer would be afforded any economy or
efficiency in its operations. Therefore, we conclude that
an analysis of economy and efficiency of operations does
not favor an award of the disputed work to either em­
ployee group.
6. Relative skills and training
The record indicates that Swartley Brothers’ employ­
ees have the requisite skills and training to perform the
work in dispute. However, there is no record evidence
regarding the skills and training of employees repre­
sented by Local 98 to perform the work in dispute. Thus,
this factor favors an award of the work in dispute to em­
ployees employed by Swartley Brothers.
Conclusions
After considering all the relevant factors, we conclude
that Swartley Brothers’ unrepresented employees are
entitled to perform the work in dispute. We reach this
conclusion relying on Swartley Brothers’ preference, its
past practice, and the relative skills of the employee
groups.
Scope of the Award
Swartley Brothers seeks a broad, areawide award in
this case that would encompass five counties—
Philadelphia, Bucks, Chester, Delaware, and Montgom­
ery Counties—in southeastern Pennsylvania.5 Local 98
opposes a broad award, and asserts that any award should
be limited to the work at the 23rd Street project that gave
rise to the instant dispute. In order to grant a broad
award in a jurisdictional determination, the Board re-
quires evidence that (1) the disputed work has been a
source of controversy in the relevant geographic area and
that disputes may recur; and (2) the charged party has the
proclivity to engage in wrongful conduct in order to ob­
tain work similar to that in dispute. Bricklayers (Sesco,
5 As noted above, the notice of hearing in this matter sets the geo­
graphic scope for the work in dispute as encompassing these five coun­
ties in southeastern Pennsylvania.
ELECTRICAL WORKERS IBEW LOCAL 98 (SWARTLEY BROS. ENGINEERS) 1273
Inc.), 303 NLRB 401 (1991). We conclude that this case
meets the test for the issuance of a broad award.
Both Robert Swartley and Verizon’s Peter Burke pro­
vided unrebutted testimony that Local 98 has, on other
projects in the past 4 years, interfered with the assign­
ment of telecommunications wiring work to the employ­
ees of Swartley Brothers. In particular, both witnesses
described Local 98’s interference with a Verizon project
on Chestnut Street in Philadelphia in February 2000. In
that case, as in this one, Verizon hired Palermo as a gen­
eral contractor, who in turn hired Swartley Brothers to
perform the wiring installation. Local 98’s Della Vella
gained unauthorized access to a secure building on the
site. Burke testified that Della Vella was asked to leave
the property by a Verizon employee, heated words were
exchanged between the two, and ultimately Della Vella
struck the Verizon employee in the face. Swartley testi­
fied that he had a telephone conversation with Della
Vella about the Chestnut Street project, during which
Della Vella told Swartley that only Local 98-represented
employees were to work on the project. As a result of
the dispute, Swartley Brothers’ employees were replaced
on the Chestnut Street project with other employees rep­
resented by Local 98. In addition, Swartley Brothers put
into evidence a list of five other telecommunications pro­
jects that it had worked on over the previous 4 years for
carriers such as Cingular, Sprint, and Nextel, and on
which it was ultimately replaced because of Local 98’s
interference with the project.6
Verizon’s Burke testified that at the time of the hearing
in May 2002, Swartley Brothers was performing tele­
communications wiring installation on Verizon’s Phi-
Over project in Philadelphia. In addition, Burke antici­
pated that Verizon would utilize Swartley Brothers on its
other telecommunications projects in the future through-
out Philadelphia, Bucks, Chester, Delaware, and Mont­
gomery Counties in southeastern Pennsylvania. Burke
testified that this work would involve the installation of
200 amp, single-phase service conduits and wires for
power, telephones, and ground conductors. Burke also
stated that Local 98 also had jurisdiction throughout the
five counties. Swartley confirmed that Swartley Brothers
engages in the installation of electrical services through-
out these five counties as well.
Based on this record, we conclude that the dispute be-
tween Swartley Brothers and Local 98 has been a con-
6 Robert Swartley testified that the list of six projects that had been
interrupted by Local 98 was drawn up at his request by Todd Moyer,
Swartley Brothers’ director of Cellular Construction. Moyer compiled
the data by reviewing Swartley Brothers records kept in the course of
regularly conducted business. Local 98 did not object to the admission
of this document into evidence.
tinuing source of controversy and that the dispute is
likely to recur in Philadelphia, Bucks, Chester, Delaware,
and/or Montgomery Counties in southeastern Pennsyl­
vania. We further conclude that Local 98 has a proclivity
to engage in wrongful conduct in order to obtain work
similar to the work in dispute in this case.7
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow­
ing Determination of Dispute.
1. Employees of Swartley Brothers Engineers, Inc.,
who are unrepresented by any labor organization, are
entitled to perform the installation of 200 amp single
phase services, conduits, and the wires therein, for
power, telephones, and ground conductors within Phila­
delphia, Bucks, Chester, Delaware, and Montgomery
Counties, Pennsylvania.
2. International Brotherhood of Electrical Workers,
Local Union 98, AFL–CIO is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
7 In this regard, we note not only that the record in this case supports
the conclusion that Local 98 has a proclivity to engage in wrongful
conduct in order to obtain disputed work, but also that the record in
other recent cases before the Board underscores this as well. See, e.g.,
Electrical Workers Local 98 (Total Cabling Specialists) , 337 NLRB
1275 (2002); Electrical Workers Local 98 (NFF Construction, Inc.),
332 NLRB 1262 (2000); Electrical Workers Local 98 (Honeywell Inc.),
332 NLRB 526 (2000); Electrical Workers Local 98 (AIMM, Inc.), 331
NLRB 1075 (2000); Electrical Workers Local 98 (Kastle Security), 324
NLRB 728 (1997); Electrical Workers Local 98 (LaSalle University),
324 NLRB 540 (1997); Electrical Workers Local 98 (Lucent Technolo­
gies) , 324 NLRB 226 (1997) (Board issues broad areawide award
against Local 98 because of likelihood of dispute’s recurrence and
union’s proclivity to violate the Act); and Electrical Workers Local 98
(Lucent Technologies) , 324 NLRB 230 (1997) (Board issues broad
areawide award against Local 98 because of likelihood of dispute’s
recurrence and union’s proclivity to violate the Act).
We further note that on July 1, 2002, the Board decided to pursue
civil contempt proceedings against both Local 98 and Della Vella as a
result of the conduct underlying the dispute in the instant case. In a
separate case issued 3 years ago, the Board found that Local 98 violated
Sec. 8(b)(4)(i) and (ii)(B) of the Act at several construction sites in the
Philadelphia area. Electrical Workers Local 98 (Telephone Man), 327
NLRB 593 (1999). In that case, the Board adopted the judge’s conclu­
sion that Local 98’s “unlawful actions toward 10 separate neutral em­
ployers in a 19-month period, involving picketing, threats to picket, and
work stoppages at six locations in the Philadelphia area, demonstrates
[Local 98’s] proclivity for violating the Act and its general disregard
for the fundamental rights of employees and neutral employers.” 327
NLRB at 602. The Board determined that a broad cease-and-desist
order was warranted in that case. On September 29, 2000, the U.S.
Court of Appeals for the Third Circuit issued its judgment enforcing the
Board’s order by default. One year later, the court of appeals issued a
consent order which broadly prohibits Local 98 from violating Sec.
8(b)(4)(i) and (ii)(B) of the Act. The Board has now determined that
Local 98’s conduct underlying the instant case is in direct contempt of
the Third Circuit’s 2001 consent order, and will pursue civil contempt
proceedings accordingly.
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Swartley Brothers Engineers, Inc., to assign the disputed whether it will refrain from forcing Swartley Brothers
work to employees represented by it. Engineers, Inc., by means proscribed by Section
3. Within 14 days from this date, International Broth- 8(b)(4)(D) to assign the disputed work in a manner in­
erhood of Electrical Workers, Local Union 98, AFL–CIO consistent with this determination.
shall notify the Regional Director for Region 4 in writing