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LOCAL 827 INT'L BHD. OF ELECTRICAL WKRS. v. VERIZON NEW JERSEY

August 18, 2005.

LOCAL 827 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Plaintiff,
v.
VERIZON NEW JERSEY, INC. and VERIZON NETWORK INTEGRATION CORP., INC. Defendants.



The opinion of the court was delivered by: JOSEPH IRENAS, District Judge

OPINION

Plaintiff, Local 827 International Brotherhood of Electrical Workers ("IBEW" or the "Union") has filed a two-count Complaint against Defendants Verizon New Jersey, Inc. ("VNJ") and Verizon Network Integration Corp., Inc. ("VNI"). In its Complaint the Union has alleged that certain work performed by non-union outside contractors, specifically "NCR Customer Engineers" or "NCR CEs,"*fn1 is the same or substantially comparable to work that is currently or has historically been performed by Union employees, and thus the type of work that VNI is required by the parties' labor agreements to assign to Union employees. The Complaint also alleges that Union employees were wrongfully denied certain wiring work.

The Court has federal question jurisdiction under 28 U.S.C. § 1331, as this matter arises under Section 301 of the Labor Management Relation Act, 29 U.S.C. § 185.*fn2 We apply federal law and traditional rules of contract interpretation when they are not inconsistent with federal law. Teamsters Indus. Emp. Welfare Fund v. Rolls-Royce Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir. 1993). Presently before this Court is a Motion for Summary Judgment by the Defendants.*fn3 Because the factual record developed by the parties on this motion would not permit a finder of fact to conclude that the work performed by the NCR CEs was the same or comparable to the work currently or historically performed by Union members, summary judgment will be granted.

  I.

  A.

  The Union is a labor organization representing certain classifications of employees of Defendant VNJ, an operating telephone company ("OTC") that is the successor to Bell Atlantic New Jersey, Inc. (Compl. ¶ 5.) VNJ provides telephone and data transmission services in New Jersey. VNI provides software configuration, installation, monitoring and maintenance services on private wide area data networks ("WANs") to large commercial customers, such as banks, schools, power companies and hospitals. (Stmt. Of Facts, ¶ 1.) VNI will use VNJ employees for certain work. Both VNJ and VNI are wholly owned subsidiaries of Verizon Communications ("Verizon").

  During the Bell Atlantic-GTE merger in 1998, a number of agreements were drawn up to resolve work classification issues.*fn4 These agreements designated which work would be performed by the employees belonging to the various bargaining units attached to Verizon. Verizon bargained with the Communications Workers of America, and both agreed upon a Customer Bid Work Agreement ("CBWA") and a Memorandum of Agreement ("MOA") which were subsequently adopted by Plaintiff.

  Both agreements serve as the foundation for Plaintiff's claims. The CBWA states that:
For the part of the Work which is currently or has been historically performed by IBEW bargaining unit employees, Verizon Network Integration Corp., Inc., VNICI, shall utilize Verizon New Jersey, Inc. as its sole contractor and its IBEW [Union] represented employees shall perform the work.
(CBWA, ¶ 2.) The MOA also provides that Union employees should be utilized to perform work for VNI that "is currently, has been historically, or is substantially comparable to work performed by IBEW bargaining unit employees. . . ." (MOA, ¶ 3.) The MOA's Interpretative Comments explain that: "Work will be considered `historically performed' by IBEW-represented employees if it has been performed by such employees within the last seven years and over a significant period of time." (MOA Interpretative Comments, ¶ 1.) In addition, "current" work is defined as including any "evolution of work." (Id. at ¶ 2) The Union contends that it is entitled to perform "maintenance" or repair work on customers' data networks. This work, according to the Union, is being sub-contracted out to NCR CEs in violation of the agreements. The Union asserts that NCR CEs do work that historically was performed by Union employees, and/or is work that evolved from past Union work. The Union also argues that its members, belonging to three classifications of employees, System Technician — Operations, System Technician — OCS, and Network Technician, currently do comparable work. Many of Plaintiff's arguments are based on the Union's work with three types of data transmission equipment — the CSU/DSU, the MUX, and the Fast Packet Switch.*fn5

  Defendants contend that the disputed work is complex software-based work. According to Defendants, only high level management employees, not Union employees, historically have worked and currently work on modifying, configuring and repairing the complex software which is at the heart of most networks. Defendants assert that only upper management type work has been contracted to NCR CEs.

  The Union also seeks an injunction and unspecified damages for wiring work it claims that it is entitled to perform. The work refers to the wiring for data and voice networks throughout buildings. According to the Union, Defendants bid and contracted this work out, in violation of the applicable labor agreements. Defendants assert that March, 2003, marked the last time that they bid for wiring work and contend that there are no plans to bid for wiring work in the future.

  II.

  The test for summary judgment is stated in Rule 56 of the Federal Rules. Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a motion for summary judgment, the court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

  The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). However, "a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id. at 248 (citation omitted).

  III.

  A.

  VNI offers its customers services related to the design and installation of data networks tailored to a customer's specific needs. (Boyce Decl., ¶ 6.) It is undisputed that the physical installation and initial set-up (referred to as the "rack & stack") of the network equipment is performed by Union members. (Stmt. Of Facts at ¶ 8.)

  For example, System Technicians — Operations are involved in the rack and stack of routers and the installation of circuits with respect to the Verizon customer network equipment.*fn6 System Technicians — OCS*fn7 do similar work as the System Technicians — Operations, however, OCS Technicians deal primarily with internal Verizon equipment.*fn8 The third category of Union employees, Network Technicians, "physically make sure the new equipment is set up properly."*fn9 (Walsh Dep., at 10.) They may also be involved in the monitoring of network devices, such as switches, and the physical replacement of hardware components after the initial rack and stack work is complete.

  B.

  Verizon's work for the customer does not end after a network has been designed and installed. VNI's Provisioning Engineers handle testing, turn-up and customer acceptance. Provisioning Engineers are high level management employees.*fn10 According to Susanne Boyce, a Technical Manager at VNI, the Provisioning Engineers are highly trained, with upper level certifications from Cisco, a major provider of equipment in the field. (Boyce Decl., at ¶ 7.)

  Once the network is up and running, another group of management-level engineers, working in VNI's Technical Assistance Center ("TAC"), are responsible for the overall management of the network. There are two levels of support provided by the TAC — maintenance and management. Under maintenance, VNI responds to calls from customers with problems, but does not offer continuous monitoring of the customer's network. Under the management plan, VNI provides around the clock remote monitoring of the customer's network equipment. (Id. at ¶¶ 11-12.) If a customer in the management plan has a problem, or "trouble," an alarm will sound at VNI's Network Operations Center ("NOC") in Frazer, PA.*fn11 (Id. at 13.)

  The NOC is also staffed by VNI management-level employees. These engineers have remote access to the customer's software, and can fix most problems from the NOC. Indeed, according to Defendants, 95% of troubles are software problems and "an equal percentage of problems can be repaired remotely." (Boyce Decl., ¶ 13.) Boyce testified that the dispatch rate is decreasing, because with ...


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