Electrical Workers Local 98 (Total Cabling Specialists)

National Labor Relations Board - Board Decisions

Sep 12, 2002

337 N.L.R.B. 1275 (N.L.R.B. 2002)

ELECTRICAL WORKERS LOCAL 98 (TOTAL CABLING SPECIALISTS) 1275
International Brotherhood of Electrical Workers,
Local 98 and Total Cabling Specialists, Inc. and
Communications Workers of America, Local
13000. Case 4–CD–1071–1
September 12, 2002
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (Act).
The charge in this proceeding was filed by Communica-
tions Workers of America, Local 13000 (Local 13000),
alleging that the Respondent, International Brotherhood
of Electrical Workers Local 98 (Local 98), violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of forcing
Total Cabling Specialists (Employer), to assign certain
work to employees it represents rather than to employees
represented by Communications Workers of America,
Local 13000 (Local 13000). The hearing was held on
November 28, 2001, before Hearing Officer Wendy B.
Silver. Local 13000 filed a posthearing brief.
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, a Pennsylvania corporation, is engaged
in the business of installing telecommunications wire and
cabling. It annually purchases and receives goods and
services valued in excess of $50,000 from its facility
located at 605 Jeffers Circle, Exton, Pennsylvania, di-
rectly from points outside the Commonwealth of Penn-
sylvania. The parties stipulate, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that Local 98 and
Local 13000 are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In September 2001, General Dynamics contracted with
the Employer to perform the voice and data cable work
for three office suites in the Public Ledger Building in
Philadelphia, Pennsylvania. Christopher Martinez was
the project manager for General Dynamics at the jobsite.
The following discussion of Local 98’s interactions
with Martinez is based on his uncontradicted testimony.
In early September 2001, Ray Della Vella, business rep-
resentative of Local 98, approached Martinez at the site.
A heavily muscled associate, with a bulletproof vest un-
der his shirt, accompanied Della Vella. Della Vella
claimed to be from “Licensing and Inspections” and said
he wanted to see the permits and licenses for the Em-
ployer at the jobsite. Della Vella then handed Martinez
his Local 98 card as identification. Following some fur-
ther conversation, Martinez refused to provide that in-
formation, and instead gave Della Vella his own number
and the number of Martinez’ supervisor, Jim Chaney.
Della Vella told Martinez that “Local 98 runs the city
and that by the time he was done, he’ll run everything
that happens in the city, and that if [Martinez] wanted to
play this game, that [Della Vella] knew where [Martinez]
lived out in Royersford.” Martinez informed Della Vella
that he probably had an old address, and Della Vella re-
plied, “We’ll see.”
Martinez told Della Vella that union labor require-
ments on the project were met because the Employer
used Local 13000-represented employees. Della Vella
replied “Who recognizes CWA as a union? Not me. Not
the IBEW.” Martinez then declined to continue the con-
versation, and Della Vella told Martinez that if he “con-
tinued to play this game, it would get rough.”
Martinez testified that, the following morning, at 4:30
a.m., he awoke to the sound of his dog barking at the
window on the second floor of his home. Martinez
looked out the window and saw two human silhouettes
that he thought matched the profiles of Della Vella and
his associate. Martinez sent his dog downstairs, where
the dog barked at the individuals through the window.
When Martinez arrived downstairs, the individuals were
gone.
Three weeks later, Della Vella was again at the jobsite
talking on a cell phone, when he saw Martinez. Martinez
told Della Vella that “it must really hurt that (the Em-
ployer) got the permits and that you guys (Local 98)
aren’t in here doing the work.” Della Vella remarked
that “what’s really gonna hurt is when I bash your f—ing
head.”
Martinez discussed these incidents with his superiors,
and they raised the option of giving Local 98 some of the
work at the jobsite. General Dynamics then told Marti-
nez to draw up plans in order to initiate re-bidding on all
the projects at the jobsite.
Ultimately, the Employer was forced to pull out of the
job because the relevant permits were rescinded. Ac-
cording to Martinez and Evan Mandras, the Employer’s
operations manager, the electrician who obtained the
permits for the Employer rescinded them because “he
didn’t want to get in the middle of a battle between the
two unions.” Once the Employer left the job, General
Dynamics rebid the work and awarded the contract to
LAN Connect, whose employees are represented by Lo-
337 NLRB No. 188
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
cal 98. LAN Connect employees completed the work at
the jobsite.
B. Work in Dispute
The disputed work involves the installation and reno-
vation of voice and data cable work at the Public Ledger
Building in Philadelphia, Pennsylvania.
C. Contentions of the Parties
Local 13000 contends that there is a jurisdictional dis-
pute within the meaning of Section 10(k) of the Act re-
garding the assignment of the work in question. It argues
that the threats of physical violence made against Chris-
topher Martinez provide reasonable cause to believe that
Local 98 violated Section 8(b)(4)(D) of the Act. Local
13000 also argues that there is no voluntary method of
adjustment in this case, because the Employer has not
agreed to be bound by the “Understanding between
Communications Workers of America and International
Brotherhood of Electrical Workers,” which assertedly
provides a means of resolving the present dispute. Fi-
nally, Local 13000 requests that the Board grant a broad
award in this dispute, awarding any voice and data ca-
bling work to employees represented by Local 13000
wherever the geographic jurisdictions of Local 13000
and Local 98 overlap.
Local 98 did not file a brief in this case. At hearing,
Local 98 contended that there is no reasonable cause to
believe that Section 8(b)(4)(D) was violated and that, in
any event, there is an agreed-upon method of resolving
the dispute between the two parties. Local 98 also op-
poses the imposition of a broad work award on the
ground that the notice of hearing in this proceeding only
specified the particular work at the Public Ledger Build-
ing.
D. Applicability of the Statute
Before the Board may proceed with a determination of
a dispute pursuant to Section 10(k) of the Act, it must be
satisfied 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) that the parties have
not agreed on a method for the voluntary adjustment of
the dispute.1
We find that the two unions had competing claims for
the disputed work in question. It is undisputed that the
workers assigned to the job were members of Local
13000. Local 98’s Della Vella questioned Martinez
about the union labor status of the work the Employer

1 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001); Teamsters Local 259 (Globe Newspaper Co.), 327 NLRB
619, 622 (1999); Laborers Local 113 (Super Excavators), 327 NLRB
112, 114, (1998).
was performing, and stated that the IBEW did not recog-
nize Local 13000 as a legitimate union. In addition,
Della Vella’s statement that Local 98 ran the city and
would run every job in the city illustrates that Local 98
sought the work Local 13000-represented employees
were performing. Local 98’s actions induced the general
contractor into considering a rebid of the project, and
ultimately led to the loss of the permits needed by the
Employer to continue the job. These factors indicate that
Local 98 also claimed the work at the Public Ledger
Building.
In pursuit of Local 98’s claim for the work, Della
Vella threatened Martinez by informing him that Local
98 knew where he lived, and that by refusing to do what
Della Vella wanted things “would get rough.” Martinez
testified that two individuals came on to his property at
4:30 in the morning, and they appeared to be Della Vella
and his associate. Della Vella also threatened to “bash”
Martinez’ head when Martinez commented about the
Employer’s continued presence at the jobsite. These
threats clearly constitute reasonable cause to believe that
Section 8(b)(4)(D) has been violated.
Local 98 presented evidence that Local 13000 and Lo-
cal 98 are signatories to a voluntary adjustment plan enti-
tled “Understanding between Communications Workers
of America and International Brotherhood of Electrical
Workers.” Neither party contends, however, nor does
the record show, that the Employer has agreed to be
bound by this agreement. The Board has consistently
held that, in order to have meaning under Section 10(k)
of the Act, a voluntary method of adjustment must be
binding upon all parties. Glazers Local 27 (E. J. Hayes),
325 NLRB 674, 675 (1998). We therefore find that there
is no agreed-upon method for the voluntary adjustment
of the dispute.
We find reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that there exists no
agreed-upon method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly before
the Board for determination.
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 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743 (J. A.
Jones Construction), 135 NLRB 1402 (1962).
ELECTRICAL WORKERS LOCAL 98 (TOTAL CABLING SPECIALISTS) 1277
The following factors are relevant in making the de-
termination of this dispute:
1. Collective-bargaining agreements
The record indicates that the Employer has a collec-
tive-bargaining agreement with Local 13000. No evi-
dence was produced to indicate any agreement between
the Employer and Local 98. We therefore find that this
factor favors an award of the work in dispute to employ-
ees represented by Local 13000.
2. Employer preference and past practice
Evan Mandras, operations manager for the Employer,
testified that the Employer prefers to use its own Local
13000-represented employees to perform the disputed
work, and that the Employer did assign the disputed
work to these employees. We find that this factor favors
an award of the disputed work to the Employer’s em-
ployees represented by Local 13000.
3. Area and industry practice
Executive vice president of Local 13000, Edward
Mooney, testified that Local 13000 represents 3500 to
4000 employees in the Philadelphia metropolitan area
number, and that it has collective-bargaining agreements
with several companies, including Lucent Technologies
and Verizon, as well as the Employer. Nonetheless,
there is no evidence of area or industry practice that fa-
vors assignment of the work in dispute to employees
represented by either Union. Local 98 presented no evi-
dence on this point. Accordingly, we find that this factor
is inconclusive and does not favor employees represented
by either union.
4. Relative skills and training
The only direct evidence of the skills and training of
the respective employees indicates that Local 13000-
represented employees are qualified to perform the work
in dispute. Mooney testified that Local 13000-
represented employees undergo several training pro-
grams, including employer-based, product-based, and
upgrade training. In addition, Mandras testified that the
Employer views Local 13000-represented employees as
qualified to perform the work in dispute.
Local 98 sought to have Mooney confirm, on cross-
examination, that Local 98-represented employees pos-
sess qualifications and training commensurate with those
possessed by employees represented by Local 13000. As
Mooney claimed ignorance of Local 98 training methods
and could only “assume” that Local 98 had similar train-
ing, we find this evidence insufficient to infer the actual
qualifications of Local 98-represented employees.
The record does indicate, however, that Local 98-
represented employees completed the disputed work
once the Employer lost the necessary permits. It is logi-
cal to infer from this fact that Local 98-represented em-
ployees are also capable of performing the disputed
work. Accordingly, the evidence fails to show that either
group of employees possesses superior qualifications
regarding the disputed work, and we find that this factor
does not favor employees represented by either Union.
5. Economy and efficiency of operations
Neither party introduced evidence to indicate which
group of employees would more efficiently or economi-
cally perform the disputed work. Madras did testify that
Local 13000-represented employees are able to perform
the disputed work in an efficient manner. Local 98 of-
fered no evidence on this point, yet the record indicates
that Local 98 employees completed the actual work.
Overall, the evidence fails to indicate that the use of ei-
ther group of employees is more efficient or economical.
Therefore, we find that this factor does not favor em-
ployees represented by either Union.
Conclusion
After considering all the relevant factors, we conclude
that employees represented by Local 13000 are entitled
to perform the work in dispute. We reach this conclusion
relying on the existing collective-bargaining contract
between Local 13000 and the Employer, and the Em-
ployer’s preference and past practice of assigning the
work. In making this determination, we are awarding the
work to employees represented by Local 13000, not to
that Union or its members.
Scope of the Award
Local 13000 requests a broad work award covering all
telecommunications work, or at a minimum all voice and
data cabling work, assigned by any employer wherever
the geographic jurisdictions of Local 98 and Local 13000
coincide. In order for a broad award to be appropriate,
the Board requires (1) that there be evidence that the dis-
puted work has been a continuous source of controversy
in the relevant geographic area and that similar disputes
may recur, and (2) that the charged party has a proclivity
to engage in unlawful conduct in order to obtain work
similar to the work in dispute. Foley Construction Co.,
316 NLRB 360, 363 (1995) (citations omitted).
Local 13000 cites two cases decided by the Board
where Local 98’s activities were directed at an employer
in Philadelphia that had a collective-bargaining agree-
ment with CWA District 13.2 In both of these cases, we
awarded a broad work award in favor of employees rep-
resented by District 13 because the evidence indicated an

2 Lucent Technologies, Inc., 324 NLRB 230 (1997), and Lucent
Technologies, Inc., 324 NLRB 226 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278

ongoing dispute regarding telecommunications work and
Local 98’s proclivity to take unlawful action in order to
obtain the work in dispute.
We find that these cases, and others3 evidence an on-
going dispute regarding the voice and data cabling work
in the Philadelphia region and a likelihood that the dis-
pute may recur in the future. We also find that the evi-
dence indicates Local 98’s proclivity to engage in unlaw-
ful activity as a means for obtaining disputed work. Ac-
cordingly, we find a broad award to be appropriate.
Therefore, our determination of this dispute applies to all
similar disputes involving the Employer wherever the
geographical jurisdictions of Local 13000 and Local 98
coincide.4
3 See Swartley Bros. Engineers, Inc., 337 NLRB 1270, 1271 fn. 3
(2002).
4 Local 98 stated at the hearing that it would oppose a broad award
on due process grounds. We find that Local 98’s failure to request a
postponement of the hearing and failure to produce a brief in this case
waive any procedural defenses to a broad work award.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Total Cabling Specialists, Inc. repre-
sented by Communications Workers of America, Local
13000, are entitled to perform voice and data cable work
at the Public Ledger Building in Philadelphia, Pennsyl-
vania, and wherever the jurisdictions of Local 13000 and
Local 98 coincide.
2. International Brotherhood of Electrical Workers,
Local 98 is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Total Communications
Systems, Inc. to assign the disputed work to employees
represented by it.
3. Within 14 days from this date, International Broth-
erhood of Electrical Workers, Local 98, shall notify the
Regional Director for Region 4 in writing whether it will
refrain from forcing Total Cabling Specialists, Inc. by
means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with this deter-
mination.