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