Local 98 IBEW

National Labor Relations Board - Board Decisions

Oct 4, 1972

199 N.L.R.B. 496 (N.L.R.B. 1972)

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.