Electrical Workers IBEW Local 98 (Kastle Security)

National Labor Relations Board - Board Decisions

Oct 14, 1997

324 N.L.R.B. 728 (N.L.R.B. 1997)

728
324 NLRB No. 121
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All subsequent dates are 1997 unless indicated otherwise.
International Brotherhood of Electrical Workers,
Local Union No. 98 and Kastle Philadelphia
Joint Ventures d/b/a Kastle Security Systems
and CommunicationWorkers of America, Dis-
trict 13, AFL–CIO. Cases 4–CD–950 and 4–CD–
951
October 14, 1997
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
The charges in this Section 10(k) proceeding were
filed on January 22, 1997, by Kastle Philadelphia Joint
Ventures d/b/a Kastle Security Systems, and by Com-
munication Workers of America, District 13, AFL–
CIO. The charges allege that the Respondent, Inter-
national Brotherhood of Electrical Workers, Local No.
98 (Local 98) violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging in proscribed
activity with an object of forcing the Employer
(Kastle) to assign certain work to employees it rep-
resents rather than to employees represented by Com-
munication Workers of America, Local 13552, AFL–
CIO (CWA). A hearing was held on March 31 and
April 10, 1997, before Hearing Officer Stephen J.
Holroyd. The Employer, Local 98, and the CWA have
filed posthearing briefs.
The National Labor Relations Board affirms the
hearing officer’s rulings, and finds them free from
prejudicial error. On the entire record, the Board
makes the following findings.
I. JURISDICTION
The Employer, a Delaware corporation, is engaged
in the business of installing security systems. During
the past year, it purchased and caused to be delivered
to its various jobsites goods valued in excess of
$50,000 which it received from suppliers outside the
Commonwealth of Pennsylvania. We find that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The parties stipulated,
and we find, that Local 98 and the CWA are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
Three Parkway is a large office tower in Philadel-
phia which was bought by Reliance Insurance Com-
pany and is being refurbished for use as its head-
quarters. Reliance selected Nason and Cullen as its
general contractor. Nason and Cullen subcontracted the
installation of the security system to Kastle. Pursuant
to the terms of the collective-bargaining agreement be-
tween Kastle and the CWA, Kastle assigned its em-
ployees represented by the CWA to perform the secu-
rity installation work.
The following events are based on the testimony of
Robert Keiffer, general manager for Kastle, and Gerald
Mickey, president of CWA Local 13552. On December
31, 1996, two Kastle CWA-represented employees
went to the Three Parkway site. Kastle’s crew chief,
Bradley, was asked several questions by a Local 98
shop steward and was told that Kastle was not author-
ized to be on the jobsite.
On January 2, 1997,1 Mickey went to Three Park-
way and met with Bradley, another Kastle CWA em-
ployee, and Mr. Tipping of CWA District 13. They
eventually met with IBEW Business Representative
and Local President Harry Foy and IBEW Business
Representative Tim Brown. Mickey asked whether
there was a problem and Foy and Brown replied that
pulling wire was ‘‘our [IBEW] work.’’
On January 8, Keiffer telephoned Foy and asked
Foy, ‘‘[d]o we have a problem?’’ Foy responded, ‘‘I’m
not saying you have a problem, but I’m not saying you
don’t have a problem.’’ Foy then stated, ‘‘[y]ou guys
don’t pay the prevailing wage.’’ Keiffer insisted that
Kastle did. Later that day, Keiffer had another tele-
phone conversation in which Foy offered to have the
IBEW do all of the security work for Kastle at Three
Parkway and, that way, Kastle would not have a pre-
vailing wage issue. Keiffer declined the offer.
On January 8 and 17 Keiffer sent Foy letters reit-
erating that Kastle paid the prevailing wage.
Keiffer called the IBEW office on January 20 to
confirm that the wages Kastle was paying conformed
to the IBEW prevailing wage. Keiffer, however, was
told that such information would not be given to him.
This prompted Keiffer to send a third letter to Foy on
January 20 stating, inter alia, ‘‘[t]o the best of our
knowledge, the prevailing wage and standards are
being met by Kastle at the Three Parkway. If it is
shown that this is not so, Kastle will immediately
make required adjustments, including retroactive ad-
justments.’’
There was no response from Foy or anyone at Local
98 to any of Keiffer’s letters.
On January 22, Keiffer received a telephone call at
about 7:15 a.m. from a Nason and Cullen representa-
tive telling him that the Three Parkway building was
empty, that no one was working, and that Keiffer
needed to solve the problem. Keiffer told the Kastle
employees not to report to Three Parkway that day,
and filed charges with the Board against the IBEW.
That same day, a picket walked on the sidewalk di-
rectly in front of Three Parkway carrying a sign which
read:
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729ELECTRICAL WORKERS IBEW LOCAL 98 (KASTLE SECURITY)
2 Local 13552 is an affiliate of District 13.
THIS IS A MESSAGE TO THE GENERAL
PUBLIC. IBEW LOCAL 98 DOES NOT HAVE
A CONTRACT WITH KASTLE SECURITY
SYSTEMS.
Later that same day, Keiffer, as well as all the other
subcontractors, received a fax from Nason and Cullen
stating that all subcontractors were expected to be
working at the Three Parkway site the following day.
A separate gate was to be set up for Kastle employees.
Kastle sent a crew to the jobsite on January 23. No
other subcontractors’ employees reported for work.
In the afternoon of January 23, Keiffer received a
fax from Nason and Cullen, advising Kastle that be-
cause of the delay at the Three Parkway project which
was caused by Kastle, that it was going to exercise its
right to cancel its contract with Kastle within 72 hours.
In response, Keiffer arranged with the IBEW to have
composite crews consisting of one Kastle CWA-rep-
resented employee working with one Center City Elec-
tric IBEW-represented employee perform the security
installation work at Three Parkway. This was done
through a contract Kastle entered into with Center City
Electric.
After entering into the contract with Center City
Electric, Nason and Cullen revoked the termination let-
ter, and Kastle has had no further labor problems with
the IBEW.
B. Work in Dispute
The work in dispute is the installation of the security
system at a building located at Three Parkway in
Philadelphia, Pennsylvania.
C. Contentions of the Parties
The Employer and the CWA contend that there is
reasonable cause to believe that Local 98 violated Sec-
tion 8(b)(4)(D) of the Act. The Employer contends that
the work in dispute should be assigned to the Employ-
er’s employees represented by the CWA on the basis
of the Employer’s collective-bargaining agreement
with the Communication Workers of America, Local
13552, AFL–CIO;2 company preference and past prac-
tice; economy and efficiency of operations; and rel-
ative skills. The CWA contends that the work in dis-
pute should be assigned to employees it represents
based on those same factors and also based on area
and industry practice.
Local 98 contends that there is no reasonable cause
to believe that Section 8(b)(4)(D) has been violated.
Local 98 further contends that, if the Board does find
reasonable cause, the work in dispute should be as-
signed to composite crews of employees from both the
CWA and Local 98 on the basis of relative skills, area
practice, and employer past practice.
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 there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
Gerald Mickey testified that on January 2, he was
told by IBEW Business Representative and Local
President Harry Foy and IBEW Business Representa-
tive Tim Brown that there was a ‘‘problem’’ with
Kastle because ‘‘[w]e’re pulling wire here and this is
our work.’’ On January 8, in a conversation with
Kastle’s general manager, Robert Keiffer, Foy offered
to have IBEW-represented employees do the work in
dispute, stating that if they did, Kastle would not have
an issue about whether it was paying its employees at
the prevailing wage rate. Notwithstanding Keiffer’s
statement that Kastle did pay the prevailing wage, his
reiteration of that claim in subsequent letters, and his
offer to adjust wages and standards if the IBEW could
show it did not, an IBEW picket began, on January 22,
to walk on the sidewalk directly in front of the Three
Parkway site. No one worked at the site that day. The
next day, only Kastle CWA-represented employees re-
ported for work. Later that day, Kastle was informed
by Nason and Cullen that its contract was going to be
canceled, because Kastle was causing a delay to the
Three Parkway project. That same day, Kastle signed
a contract with Center City Electric providing for the
security installation work to be performed by compos-
ite crews consisting of one Kastle CWA-represented
employee and one Center City Electric IBEW-rep-
resented employee. After entering into this contract,
Kastle has had no further labor problems.
Contrary to Local 98’s contention, we find that
Local 98, through the foregoing conduct—especially in
light of Foy’s January 8 conversation with Kieffer—
explicitly made a claim for the disputed work, and that
its January 22 picketing was in furtherance of this
claim. On this basis, we further find that there is rea-
sonable cause to believe that a violation of Section
8(b)(4)(D) has occurred. The parties stipulated that
there exists no agreed-on method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we conclude that the
dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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-
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730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certification and collective-bargaining
agreements
Communication Workers of America, Local 13552,
AFL–CIO is the certified representative of the Em-
ployer’s employees who perform the security installa-
tion work at issue. The Employer and Communication
Workers of America, Local 13552, AFL–CIO have an
existing collective-bargaining agreement which covers
the installation work at issue. Accordingly, this factor
favors an award of the work in dispute to Kastle em-
ployees represented by the CWA.
2. Employer preference and past practice
Kastle prefers to assign the work in dispute to em-
ployees represented by the CWA consistent with its
longstanding practice of assigning such work to those
employees. Accordingly, we find that this factor favors
an award of the disputed work to employees rep-
resented by CWA.
3. Area and industry practice
The Employer and the CWA presented evidence
that, during the past 14 years in the Philadelphia area,
employees represented by the CWA have installed ap-
proximately 200 Kastle security systems. The IBEW
presented evidence that virtually all of Kastle’s com-
petitors employ employees that it represents to install
security systems in the Philadelphia area. Accordingly,
this factor does not favor an award of the disputed
work to either group of employees.
4. Relative skill
Keiffer testified that its CWA-represented employees
receive specialized training in all aspects of installa-
tion, testing, and maintenance of Kastle-designed secu-
rity systems. Foy testified that as part of their training,
employees represented by the IBEW take a course in
the installation of security systems as part of their 4-
year apprenticeship program. Accordingly, this factor
does not favor an award of the disputed work to either
group of employees.
5. Economy and efficiency of operations
Keiffer testified that Kastle employees represented
by the CWA are full-time, year-round employees who
do nothing but work for Kastle on Kastle-designed sys-
tems. Kastle’s CWA-represented employees perform
all of the installation work as well as the testing, serv-
icing, maintaining, and upgrading of the systems.
Thus, Kastle’s CWA-represented employees are experi-
enced in all aspects of the Employer’s work, which fa-
cilitates their assignment to jobs. There is no evidence
that employees represented by Local 98 are similarly
experienced. Accordingly, we find that this factor fa-
vors an award of the disputed work to employees rep-
resented by the CWA.
Conclusion
After considering all the relevant factors, we con-
clude that the employees represented by the CWA are
entitled to perform the work in dispute.
We reach this conclusion relying on the factors of
certification and collective-bargaining agreement, em-
ployer preference and past practice, and economy and
efficiency of operations.
In making this determination, we are awarding the
work to employees represented by the CWA, not to
that Union or its members.
Scope of Award
The Employer and CWA seek a broad award appli-
cable to all security system installation work per-
formed by Kastle within the geographic area where the
jurisdictions of the CWA and Local 98 coincide. They
note that previous 8(b)(4)(D) charges have been filed
against Local 98 and contend that Local 98 has dem-
onstrated a proclivity to engage in the type of conduct
that gave rise to the present proceedings.
Section 10(k) awards are normally limited in scope
to the jobsite or sites where the allegedly unlawful
conduct occurred. For the Board to issue a broad
areawide award: (1) there must be evidence that the
work in dispute has been a continuous source of con-
troversy in the relevant geographical area and that
similar disputes may recur; and (2) there must be evi-
dence demonstrating the offending union’s proclivity
to engage in further unlawful conduct in order to ob-
tain work similar to that in dispute. See Laborers
(Paschen Contractors), 270 NLRB 327, 330 (1984).
Thus, where there is an indication that a dispute 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 jurisdic-
tions of the competing unions coincide. Plumbers
Local 155 (Allied/Hussman), 222 NLRB 796 (1976).
In the instant case, there is no evidence that Local 98
has a proclivity to engage in such conduct against
Kastle. In fact, Keiffer testified that Kastle has never
previously had a labor problem with Local 98 on any
security installation job it has performed in the Phila-
delphia area since 1983. Moreover, there was no testi-
mony indicating that Local 98 intended to engage in
such conduct against Kastle in the future. Nor do the
parties cite any prior 10(k) determination involving the
work in dispute here between Local 98 and Local
13552. Accordingly, the award is limited to the con-
troversy at the jobsite that gave rise to this proceeding.
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731ELECTRICAL WORKERS IBEW LOCAL 98 (KASTLE SECURITY)
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Kastle Philadelphia Joint Ventures
d/b/a Kastle Security Systems represented by Commu-
nication Workers of America, Local 13552, AFL–CIO
are entitled to perform the work of installing a security
system at Three Parkway in Philadelphia, Pennsyl-
vania.
2. International Brotherhood of Electrical Workers,
Local Union No. 98 is not entitled by means pro-
scribed by Section 8(b)(4)(D) to force Kastle Philadel-
phia Joint Ventures d/b/a Kastle Security Systems to
assign the disputed work to employees represented by
it.
3. Within 10 days from this date, International
Brotherhood of Electrical Workers, Local Union No.
98 shall notify the Regional Director for Region 4 in
writing whether it will refrain from forcing Kastle
Philadelphia Joint Ventures d/b/a Kastle Security Sys-
tems, by means proscribed by Section 8(b)(4)(D), to
assign this disputed work in a manner inconsistent
with this determination.
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