International Brotherhood of Electrical Workers Local 47 (Titan Services, Inc.)

National Labor Relations Board - Board Decisions

Jun 18, 2019

368 NLRB No. 11 (N.L.R.B. 2019)

368 NLRB No. 11
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections
can be included in the bound volumes.
International Brotherhood of Electrical Workers Lo-
cal 47 and Titan Services, Inc. and L.K. Com-
stock National Transit, Inc. and International
Union of Operating Engineers, Local 12, AFL–
CIO.
International Brotherhood of Electrical Workers Lo-
cal 47 and L.K. Comstock National Transit, Inc.
and Titan Services, Inc. and International Union
of Operating Engineers, Local 12, AFL–CIO.
Cases 31−CD−223008 and 31−CD−222858
June 18, 2019
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
This is a consolidated jurisdictional dispute proceeding
under Section 10(k) of the National Labor Relations Act.
Employer L.K. Comstock National Transit, Inc. (Com-
stock) filed an unfair labor practice charge on June 26,
2018,1 in Case 31–CD–222858. Employer Titan Ser-
vices, Inc. (Titan) filed an additional charge in Case 31–
CD–223008 on June 29. The Employers allege that In-
ternational Brotherhood of Electrical Workers Local 47
(Local 47) violated Section 8(b)(4)(D) of the Act by
threatening to engage in proscribed activity with an ob-
ject of forcing each Employer to assign certain work to
employees represented by Local 47 rather than to em-
ployees represented by International Union of Operating
Engineers, Local 12, AFL–CIO (Local 12).
A hearing was held on July 18, 19, and 20 and August
20, 21, 22, and 23 before Hearing Officer Roufeda
Ebrahim. During the hearing, the hearing officer denied
Local 12’s motion to quash the Section 10(k) notice of
hearing, in which Local 12 asserted, inter alia, that the
parties had agreed upon a method for the voluntary ad-
justment of the dispute—namely, the North America’s
Building Trades Unions (NABTU)’s Plan for the Settle-
ment of Jurisdictional Disputes in the Construction In-
dustry (the Plan). Thereafter, the Employers, Local 47,
and Local 12 filed posthearing briefs. With the permis-
sion of the Board, amicus curiae Plan subsequently filed
a brief arguing that the Board does not have jurisdiction
to determine the dispute because all parties are stipulated
to the Plan. The Employers and Local 47 subsequently
filed briefs in response to the amicus brief.

1 All dates are in 2018 unless stated otherwise.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire rec-
ord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that Comstock is a Delaware
limited liability company engaged in the business of spe-
cialty electrical construction with an office and place of
business located at 2215 El Segundo Blvd., Hawthorne,
California, and that it annually purchases and receives at
its Hawthorne, California facility goods valued in excess
of $50,000 directly from points outside the State of Cali-
fornia. The parties also stipulated that Titan is an Arizo-
na limited liability company engaged in the business of
performing electrical overhead catenary systems installa-
tion with an office and place of business located at 18444
N. 25th Ave, #420, Phoenix, Arizona, and that it annual-
ly purchases and receives at its Phoenix, Arizona facility
goods valued in excess of $50,000 directly from points
outside the State of Arizona. The parties further stipulat-
ed, and we find, that Comstock and Titan are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and are subject to the jurisdiction of
the Board, and that Local 47 and Local 12 are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
II. DISPUTE
A. Background and Facts of the Dispute
Comstock is an electrical systems contractor that spe-
cializes in the installation and maintenance of overhead
catenary systems (OCS) carrying power to light rail
trains. Comstock is a member of the National Electrical
Contractors Association (NECA), and it is and has been
bound to an Outside Line Construction Agreement (Out-
side Line Agreement) between Western Line Contractors
Chapter of NECA and Local 47 at all relevant times.2
Likewise, Titan is an electrical contractor that specializes
in OCS installation. At least since 2010, Titan has been
signatory to the Outside Line Agreement.
Walsh/Shea Corridor Constructors (Walsh) is a general
contractor in charge of the Crenshaw/LAX Transit Cor-
ridor Project (Project), which entails construction of an
8.5-mile light rail line connecting two existing light rail
lines in Los Angeles, California. The Project is covered
by a Project Labor Agreement (PLA) between the Los

2 On March 26, 2014, Comstock signed a letter of assent binding it
to the Outside Line Agreement then in effect and to successors to that
agreement. The most recent agreement in the record is effective from
June 1, 2017, through May 31, 2022.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Angeles County Metropolitan Transportation Authority
(MTA) and the Los Angeles/Orange Counties Building
and Construction Trades Council. The signatories to the
PLA include certain local unions, including Local 12.
Local 47 is not a signatory to the PLA. Article 12 of the
PLA sets forth a procedure for resolving jurisdictional
disputes. It provides that such disputes be settled pursu-
ant to the Plan.
In early 2014, Walsh subcontracted to Comstock the
performance of certain electrical systems work, including
OCS installation, for the Project. On December 1, 2016,
Comstock subcontracted to Titan certain OCS installa-
tion work for the Project—the work of procuring, in-
stalling, and grounding electrical poles and related com-
ponents—and Titan agreed to comply with the terms and
conditions of the PLA.3 On January 24, 2017, Comstock
signed a letter of assent, in which it agreed to comply
with all terms and conditions of the PLA for this Project.
Although neither Employer has a collective-bargaining
agreement with Local 12, the PLA incorporates by refer-
ence the Operating Engineers’ Master Labor Agreement
(MLA) between Local 12 and the Southern California
Contractors Association.
Since August 17, 2017, Titan has employed three
linemen and two apprentices to install electrical poles on
the Project, all of whom were registered with Local 47’s
hiring hall. This work involved the following tasks.
Titan employees first spent about an hour loading 5–8
poles onto Titan’s boom truck from designated storage
areas at the Project site. Specifically, foreman Brian
Grant operated a crane on the boom truck to lift each
pole,4 while a lineman and his apprentice rigged the pole
and directed it onto the bed of the boom truck. Next, a
Titan employee drove the boom truck along the rail from
the storage area to the installation site anywhere from
about 1000 feet to over a mile away. Upon arriving at
the installation site, Titan employees adjusted bolts on
the concrete foundation to ensure the foundation was
level, set up the boom truck, and rigged a pole to prepare
it to be lifted into position. Grant then operated the crane
on the boom truck to pick up a pole, and other Titan em-
ployees manually directed the pole into the concrete
foundation. This phase of the process took 5-10 minutes
for each pole. Next, Titan employees manually grounded
the pole to protect against electrocution, outages, and
other hazards. Once poles were grounded, another line-

3 Brian Grant, a foreman lineman and co-owner of Titan, testified
that his wife and coowner Jami Grant signed a letter of assent on April
19 but backdated it to December 16, 2016, because Walsh representa-
tive Tony Dupree asked her to do so.
4 Under Titan’s policy, only Grant is permitted to operate a crane on
Titan’s boom truck.
man and his apprentice framed the poles and strung elec-
trical wires.
On a few occasions in February 2018, Titan was una-
ble to set up its boom truck within the confined sites
where poles were to be installed.5 In those instances,
Comstock employee Jose Sanchez, who was represented
by Local 47, operated Comstock’s boom truck to hoist
poles.6 Comstock otherwise performed most of the fram-
ing and wire-stringing work, although Titan did some of
that work.7
On March 27, Local 12 Business Representative Ken
Hunt attended a pre-job conference with Walsh and cer-
tain local unions signatory to the PLA.8 Comstock, Ti-
tan, and Local 47 were not present. During that meeting,
Hunt learned that Comstock had assigned the OCS work
to Local 47. Hunt objected to any assignment of work to
Local 47 and stated that “Local 12 is claiming the hoist-
ing if there is some to be done.”
On April 18, Hunt was out performing a routine job
check and encountered a Titan employee operating a
hydraulic boom truck to hoist a pole to load it on the
back of the truck. Hunt asked the employee if he had
been dispatched through Local 12’s hiring hall, and the
employee replied that he had been referred through Local
47’s hiring hall. On April 24, Hunt filed a grievance
against Titan, alleging a violation of Section 7 of the
PLA, the “Referral” provision.9 Specifically, the griev-
ance alleged that “[t]he operation of the hydraulic boom
truck is work of the Operating Engineer and is a classifi-
cation in the [MLA] under Appendix B, Group V – ‘Hy-
draulic Boom Truck.’” The grievance demanded that
Titan “pay compensatory damages to the Operating En-

5 Grant explained that Titan’s boom truck has “A-frame” legs, while
Comstock’s boom truck has legs that “come straight out and set down.”
The design of Comstock’s boom truck allowed it to fit into locations
where Titan’s boom truck could not.
6 Comstock’s construction manager, Ramon Virgin, testified that
Comstock employees set poles in the same manner as Titan employees
as described above.
7 By the time the hearing opened, the Employers’ employees had set
270 electrical poles for the Project. Comstock’s program manager,
Pratheesh Nair, testified that Titan no longer works for Comstock and
that there are still 30–35 OCS poles that need to be installed on the
Project. Virgin testified that Comstock plans to install the remaining
OCS poles using Local 47–represented employees.
8 Sec. 17.1 of the PLA requires a pre-job conference to be held prior
to the commencement of work. However, the March 27 pre-job con-
ference was held about 7 months after Local 47–represented employees
began performing the disputed work.
9 Sec. 7 of the PLA requires a contractor to perform the work cov-
ered by the PLA with individuals dispatched from a hiring hall of a
union signatory to the PLA. Under the PLA, the contractor may em-
ploy up to 5 “core workers,” i.e., employees who have been on its pay-
roll for 60 of the 100 days preceding the award of the Project work, but
the core workers must register with the appropriate hiring hall of the
signatory union prior to commencing work.
ELECTRICAL WORKERS LOCAL 47 3
gineers Health and Welfare Fund for all hours worked on
the Project by workmen not referred through Local 12[’s]
hiring hall that perform work contained under a classifi-
cation in the [MLA].” Damages sought were in the
amount of $621.20 “per day, per workman,” which in-
cluded $412.88 in “[w]ages per day, per workman” and
$208.32 in “[b]enefits per day, per workman.” On April
30, Hunt called Virgin and learned that Comstock was
operating its boom truck with Local 47–represented em-
ployees who had not been registered with and referred
from Local 12’s hiring hall. Based on this conversation,
Local 12 filed an identical grievance against Comstock.
The parties could not resolve the grievances at a step-
one grievance meeting. At step-two grievance meetings
with each Employer on June 6, Hunt reminded them of
his earlier statement at the pre-job conference that he
“made a claim to this hoisting job” and “asked Local
47’s work assignment to be removed from that and all
future.” In response, the Employers’ representatives
maintained that they had a right to assign the work to
Local 47, a union not signatory to the PLA, on the
ground that Section 2.4.8 of the PLA excluded the work
from its coverage.10 Local 47’s representatives also de-
fended the work assignment by insisting that “Perfor-
mance Requirements” for the Project—which were in-
cluded in the contract between the MTA and Walsh—
required that the OCS work be performed by “experi-
enced linemen,” a classification listed only in the Outside
Line Agreement (to which Local 47 is signatory).
On June 19, Local 47 Business Manager Patrick Lavin
sent substantially identical letters to Titan and Comstock.
The letters noted Local 12’s grievances against each Em-
ployer related to “assigning the operation of a hydraulic
boom truck to members of [Local 47] instead of Local
12,” and advised that “if you reassign [the disputed
work] to Local 12, Local 47 will take immediate eco-
nomic action, including withholding labor, picketing, or
other similar action, to ensure the proper assignment of
work to Local 47.”11 Based on these letters, Comstock

10 Sec. 2.4.8 of the PLA states in part: “This Agreement shall not ap-
ply to . . . those items excluded by the National Electrical Code (NFPA
70) identified projects as ‘Not Covered’ under Article 90.” Nair testi-
fied that installation of OCS, which includes the disputed work of hoist-
ing electrical poles for OCS, falls within NFPA 70, Article 90’s refer-
ence to “[i]nstallation of railways for . . . distribution of power used
exclusively for operation of rolling stock.”
11 Lavin testified that before sending the letter to Titan, he had con-
versations with Titan’s owners Jami Grant and Brian Grant (separately)
about Local 12’s grievance against Titan. Lavin testified that he told
them to “throw away the grievance” because the work is “the property
of Local 47.” Lavin denied ever discussing with the Grants whether or
not Local 47 would take economic action or picket. Brian Grant testi-
fied that neither he nor his wife had any conversation with Lavin about
the letter.
and Titan filed unfair labor practice charges on June 26
and 29, respectively, alleging that Local 47 had made a
threat in violation of Section 8(b)(4)(D) of the Act.
On June 29, Terry George, director of jurisdiction for
the International Union of Operating Engineers (IUOE),
filed a notice of violation with Plan Administrator Rich-
ard Resnick, alleging that Local 47’s threat of economic
action and Comstock’s subsequent Board charge consti-
tuted “impediments to job progress” in violation of the
Plan. The notice of violation requested that Comstock be
directed to “resolve any jurisdictional dispute” in accord-
ance with the Plan.12 That same day, Resnick wrote to
International Brotherhood of Electrical Workers (IBEW)
President Lonnie Stephenson and Comstock counsel
Christopher Smith, instructing the parties to cease the
alleged violations and process the jurisdictional dispute
through the Plan. Shortly thereafter, Stephenson in-
formed Resnick that “[i]t is the position of the IBEW that
outside line locals do not belong to the local building
trades councils, and the IBEW does not pay per capita to
[NABTU]. Therefore, it does not fall under the jurisdic-
tion of the Plan.”13 Resnick subsequently selected an
arbitrator, who issued an interim ruling on July 12 that
all the parties were bound to the Plan, despite Local 47’s
status as an “outside” local.14
B. Work in Dispute
The notice of hearing described the disputed work as
“[t]he operation of the hydraulic boom truck when it is
hoisting material in the Crenshaw/LAX transit corridor
project in Los Angeles, California.” At the hearing, the
parties stipulated that the work in dispute did not include
the driving of the boom truck or use of the boom truck to
string wire to the installed poles. In its post-hearing
brief, Local 12 further specifies the disputed work as “the
operating of the hydraulic boom truck when it is hoisting
material, specifically steel, hollow poles, on the Pro-
ject.”15

12 On July 2, George filed a similar notice of violation with Resnick
relating to Titan.
13 Pursuant to Art. 26, Sec. 4 of the IBEW Constitution, “outside”
locals have jurisdiction over the “operation, maintenance and repair of
equipment owned or operated by utility employers[;] [a]ll electrical
construction work outside of isolated plants and the property lines of
any given property[; and a]ll line work consisting of . . . concrete or
metal . . . poles or towers, including wires, cables or other apparatus
supported therefrom.” In sum, “outside” IBEW locals perform work
outside buildings. See Local 181, Operating Engineers (Service Elec-
tric Co.), 146 NLRB 483, 485 fn. 3 (1964).
14 IBEW and IUOE appeared at the arbitration hearing, with the for-
mer contesting the Plan’s jurisdiction over Local 47. Local 47 did not
participate.
15 The Employers argue, in their posthearing brief, that the disputed
work involves only the hoisting of the OCS poles necessary to set the
poles into their concrete foundation. However, Local 12’s grievance
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
We find, based on the record, that the work in dispute
is the operation of the hydraulic boom truck by the Em-
ployers when it is hoisting steel, hollow electrical poles
in the Crenshaw/LAX Transit Corridor Project in Los
Angeles, California.
C. Contentions of the Parties
Local 12 contends that the notice of hearing should be
quashed on several grounds. First, Local 12 contends
that it has not claimed the work in dispute under the ra-
tionale of Laborers (Capitol Drilling Supplies), 318
NLRB 809 (1995). According to Local 12, it did not
seek to have the work in dispute reassigned from Local
47–represented employees to Local 12–represented em-
ployees; it merely filed contractual grievances against the
Employers to obtain compensatory damages for breaches
of the Referral provisions in the PLA. Along these lines,
Local 12 argues that the grievances were matters of con-
tractual work preservation, not claims for disputed work
cognizable under Section 10(k). Second, Local 12 ar-
gues that Local 47’s threats to take economic action were
not genuine. Third, Local 12 argues that the parties have
agreed upon a method for the voluntary adjustment of the
dispute. Alternatively, Local 12 asserts that if the notice
of hearing is not quashed, the disputed work should be
awarded to employees it represents.16
Amicus Plan, like Local 12, argues that the Board
lacks jurisdiction to determine the dispute under Section
10(k) because all parties here—the Employers, Local 47,
and Local 12—are bound to resolve the jurisdictional
dispute through the procedures of the Plan. The Plan
argues that both Local 12 and the Employers have agreed
to comply with all the terms of the PLA, including the
requirement that jurisdictional disputes be resolved pur-
suant to the Plan, and Local 12 complied with the PLA
by submitting the jurisdictional dispute to the Plan.
Amicus Plan also argues that Local 47 is bound to the
PLA’s requirement to utilize the Plan for resolution of
jurisdictional disputes through its conduct manifesting an
intent to abide by the terms of the PLA.
The Employers and Local 47 contend that the Board is
authorized to determine the merits of this jurisdictional
dispute. They argue that there are competing claims for
the work in dispute, and that there is reasonable cause to

against Titan was filed after Hunt’s encounter with a Titan employee
who was hoisting a pole to load it on the back of the truck. At the
hearing, Local 12 counsel also declined to limit the disputed work to
the hoisting work involved in placing the poles on their foundation.
16 The entirety of Local 12’s argument on this point consists of one
conclusory sentence: “If the Board deems it necessary to evaluate the
merits of this dispute then [the] work in question should be awarded to
members of Local 12, based on the 10(k) factors.” (Br. at 32.) Local
12 does not attempt to explain how those factors support assigning the
disputed work to employees it represents.
believe that Section 8(b)(4)(D) of the Act has been vio-
lated in light of Local 47’s threats to take economic ac-
tion against the Employers if the hoisting work were to
be reassigned to Local 12. They further argue that be-
cause Local 47, as an “outside” local, is neither stipulat-
ed to the Plan nor party to any agreement binding it or its
members to the Plan, it is not the case that all parties
have agreed on a method for the voluntary adjustment of
the dispute. The Employers additionally contend that
although they are parties to the PLA, even they are not
bound to resolve the instant dispute under its terms be-
cause the PLA (and hence the incorporated Plan) specifi-
cally excludes OCS work from its coverage. In their
response to the brief of amicus Plan, the Employers and
Local 47 also argue that none of Local 47’s conduct
manifested an intent to be bound to the PLA and, in turn,
to the Plan’s dispute resolution program.
On the merits, the Employers and Local 47 assert that
the work in dispute should be awarded to employees rep-
resented by Local 47 based on the following factors:
collective-bargaining agreement, employer preference,
current assignment, past practice, area and industry prac-
tice, relative skills and training, and economy and effi-
ciency of operations.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. This standard requires finding that there is rea-
sonable cause to believe that there are competing claims
to the disputed work and that a party has used proscribed
means to enforce its claim to the work in dispute. Addi-
tionally, there must be a finding that the parties have not
agreed on a method of voluntary adjustment of the dis-
pute. Operating Engineers Local 150 (R&D Thiel), 345
NLRB 1137, 1139 (2005). On this record, we find that
this standard has been met.
1. Competing claims for work
We find reasonable cause to believe that both Unions
have claimed the work in dispute for the employees they
respectively represent. Local 47 has claimed the work by
its June 19 letters objecting to any assignment of the op-
eration of a hydraulic boom truck to Local 12–
represented employees. Local 47 Business Manager
Lavin also directly claimed the disputed work by telling
Titan’s owners that the work belonged to Local 47. In
addition, Local 47’s “performance of the work indicates
that [it claims] the work in dispute.” Sheet Metal Work-
ers Local 54 (Goodyear Tire & Rubber Co.), 203 NLRB
74, 76 (1973); see also Operating Engineers Local 513
(Thomas Industrial Coatings), 345 NLRB 990, 992 fn. 6
ELECTRICAL WORKERS LOCAL 47 5
(2005) (citing Laborers Local 79 (DNA Contracting),
338 NLRB 997, 998 fn. 6 (2003)).
We also find, despite its claims to the contrary, that
Local 12 has claimed the disputed work. As recounted
above, Local 12 Business Representative Hunt made an
oral demand for the disputed work at the step-two griev-
ance meetings with each Employer. Local 12’s claim for
the disputed work is also demonstrated by the argument
in its post-hearing brief that the MLA’s prevailing wage
rates “classify the work in dispute as Operating Engi-
neers.” Finally, Local 12 has filed pay-in-lieu grievances
against each Employer alleging contract violations for
their failure to use employees referred by Local 12 to
perform the disputed work. The Board has long held that
such pay-in-lieu grievances are essentially demands for
disputed work. See Operating Engineers Local 18 (Don-
ley’s, Inc.), 360 NLRB 903, 906 (2014); Laborers
(Eshbach Bros., LP), 344 NLRB 201, 202 (2005).17
Moreover, we find no merit in Local 12’s argument
that the instant proceeding involves a contractual dispute
over the preservation of work for employees it repre-

17 We reject Local 12’s argument that its pay-in-lieu grievances are
materially distinguishable from other pay-in-lieu grievances that have
been found to be claims for work. Local 12 argues that it has sought
only compensatory damages to be paid to the Operating Engineers
Health and Welfare Fund, as specified in the MLA for violations of the
referral provisions, not the reassignment of the work from Local 47–
represented employees to Local 12–represented employees, and that the
Employers may employ Local 47 members as their “core workers” so
long as they are dispatched through Local 12’s hiring hall. However,
regardless of the identity of the intended recipient of the compensatory
damages or the absence of an express request to reassign the work to
employees Local 12 represents, the fact remains that the grievances
were premised on Local 12’s asserted contractual right to be paid for
the disputed work. Such grievances support a finding of a claim for the
work, regardless of whether Local 12 sought to perform the work itself
(in addition to payment for the work). See Roofers Local 30 v. NLRB,
1 F.3d 1419, 1427 (3d Cir. 1993) (attempted distinction “between seek-
ing the work and seeking pay for the work is ephemeral”).
We further reject Local 12’s argument that it made no claim to the
disputed work under Capitol Drilling, above. Contrary to Local 12’s
assertion, the Board in Capitol Drilling did not quash the notice of
10(k) hearing just because the union alleged contractual violations.
Instead, the Board found that because the union’s grievance was solely
against a general contractor, not a subcontractor who had authority to
assign the work, there was no competing claim for the work being
performed by employees of the subcontractor. See Capitol Drilling,
318 NLRB at 810–812. Here, Local 12’s grievances were directed at
the subcontractors—Comstock and Titan—that had assigned the dis-
puted work to employees represented by Local 47, and the grievances
expressly asserted that “[t]he operation of the hydraulic boom truck is
work of the Operating Engineer” under the MLA. Accordingly, this
case presents a traditional jurisdictional dispute in which two unions
have contracts and each union claims that its contract covers the work
at issue. See, e.g., Carpenters Southeast Missouri District Council
(International Riggers), 306 NLRB 561, 563 (1992); Carpenters Los
Angeles Council (Swinerton & Walberg), 298 NLRB 412, 413–414
(1990).
sents, rather than a jurisdictional work dispute within the
scope of Section 10(k). The record shows that Local 47–
represented employees have been performing the disput-
ed work for the Employers since August 2017. While
Local 12 has dispatched hydraulic boom truck operators
to perform the hoisting of materials other than OCS poles
on the Project, it is undisputed that Local 12 has never
performed the work in dispute for the Employers. Thus,
the grievances seek work acquisition, not work preserva-
tion. The Board has found that these types of claims are
appropriately resolved through a 10(k) proceeding. See
Electrical Workers, Local 48 (Kinder Morgan Termi-
nals), 357 NLRB 2217, 2218–2219 (2011), and cases
cited there.18
2. Use of proscribed means
We find reasonable cause to believe that Local 47 used
means proscribed by Section 8(b)(4)(D) to enforce its
claims to the work in dispute. As noted above, on June
19, Local 47 sent letters to the Employers, threatening to
“take immediate economic action, including withholding
labor, picketing, or other similar action, to ensure the
proper assignment of [the disputed work] to Local 47.”
The Board has long considered such threats to be a pro-
scribed means of enforcing claims to disputed work.
See, e.g., Washington & Northern Idaho District Council
of Laborers, 366 NLRB No. 161, slip op. at 3 (2018);
Laborers Local 1184 (High Light Electric), 355 NLRB
167, 169 (2010).
We find no merit in Local 12’s assertion that “conver-
sations between Local 47’s Business Manager and the
Contractors” indicate that Local 47’s threat was not
“genuine.” Local 47 Business Manager Lavin testified
that he spoke with Titan’s owners, but he denied that he
discussed with them taking economic job actions or
picketing. Titan owner Brian Grant also testified that
neither he nor his wife (Titan’s co-owner Jami Grant)
had conversations with Lavin about the letter in which
Local 47 threatened economic action. In addition, there
is no evidence that Lavin had any conversation with
Comstock. “In the absence of affirmative evidence that a
threat to take proscribed action was a sham or was the
product of collusion, the Board will find reasonable
cause to believe that the statute has been violated.” La-
borers Local 271 (New England Foundation Co.), 341
NLRB 533, 534–535 (2004). There is simply no evi-
dence on this record that Local 47’s written threats were

18 Theatrical Stage Employees Union Local 2 IATSE, 366 NLRB No.
123 (2018), cited by Local 12, is distinguishable. The employer in that
case created a work-preservation dispute by reassigning work histori-
cally performed by one group of employees to another group of em-
ployees. In contrast, the work in dispute in this case has not previously
been performed by employees represented by Local 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the result of collusion with the Employers or were oth-
erwise not genuine.
3. No voluntary method for adjustment of dispute
We further find, in agreement with the Employers and
Local 47, that there is no agreed-upon method for volun-
tary adjustment of the dispute to which all parties are
bound. “It is well settled that all parties to the dispute
must be bound if an agreement is to constitute an agreed
method of voluntary adjustment.” High Light Electric,
above at 169 (internal quotations omitted). The Board
carefully scrutinizes the agreements at issue in order to
determine if the parties are bound. Id.
Local 47 claimed the work under the Outside Line
Agreement with the Employers, and that agreement does
not contain any provision binding Local 47 to the Plan.
In addition, although the PLA incorporates the Plan, Lo-
cal 47 is not signatory to the PLA. While Local 47 is
affiliated with the IBEW, which is bound to the Plan
through its affiliation with the NABTU, Local 47 Busi-
ness Manager Lavin testified that Local 47 is an “out-
side” local, that “outside” IBEW locals are not bound to
the Plan, and that Local 47 is not part of NABTU. In
similar circumstances, the Board has repeatedly found
that that an “outside” local of the IBEW was not bound
to the procedures of the Plan. See Local 876, Interna-
tional Brotherhood of Electrical Workers (Newkirk Elec-
tric Associates), 365 NLRB No. 81, slip op. at 3 (2017),
and cases cited there.
Amicus Plan argues that, regardless of any exemption
from the Plan enjoyed by “outside” local unions in the
past, Local 47 bound itself to the Plan by engaging in
conduct manifesting its intent to abide by the terms of the
PLA, which incorporates the Plan. Specifically, the Plan
asserts that Local 47 performed work covered by the
PLA, a Local 47 attorney and a Local 47 representative
attended the grievance meetings, and Local 47 was repre-
sented by an IBEW representative at the arbitration hear-
ing. Contrary to the Plan’s argument, we find that the
cited conduct fails to establish an implied agreement to
be bound to the PLA.
To begin, the Plan cites no Section 10(k) precedent
where the Board has held a union to the terms of a col-
lective-bargaining agreement merely because it per-
formed work arguably covered by that agreement, and
we see no reason to do so in this proceeding. The work
at issue was covered by the Outside Line Agreement,
was assigned to Local 47 members by employers that
were signatory to that agreement, and was the kind of
work traditionally performed by IBEW linemen. In these
circumstances, we find that Local 47 did not manifest
assent to the PLA by performing the disputed work even
assuming the PLA also covers that work (an issue the
parties contest). Further, while Local 47 participated in
the grievance meetings that were held in accordance with
the PLA, it invoked the “Performance Requirements” in
Walsh’s contract with the MTA, not the PLA, to support
the Employers’ assignment of the disputed work to em-
ployees it represents. Local 47 never filed a grievance
under the PLA nor expressly agreed to be bound by the
results of the PLA’s grievance process. We find that
Local 47’s limited participation in the meetings regard-
ing Local 12’s grievances against the Employers did not
signal an intent by Local 47 to be bound by the result of
the grievance procedures set forth in the PLA. Cf. Sheet
Metal Workers Local 420 (Rusco Building Systems), 198
NLRB 1207, 1209 (1972) (holding that a minimal degree
of cooperation, such as replying to the Joint Board’s re-
quest for information, is insufficient to establish that the
employer agreed to be bound to the Joint Board). Nei-
ther is the participation of the IBEW at the arbitration
hearing sufficient, under the circumstances, to establish
that Local 47 is bound to the Plan. Cf. Newkirk Electric
Associates, above, slip op. at 4 (holding that IBEW “out-
side” local was not bound to the Plan despite IBEW Pres-
ident’s letter advising local to comply with the Plan ad-
ministrator’s request to withdraw its threat against the
employer). As noted above, Local 47 did not participate
in the July 12 arbitral hearing, and there is no indication
that it agreed to be bound by its results. See High Light
Electric, above at 169 (arbitrator’s decision did not bind
an employer that was not a party to the proceeding and
did not agree to be bound by its results). On these facts,
we find that Local 12 has not established that Local 47 is
bound under the Plan.19
Based on the foregoing, we find that there is reasona-
ble cause to believe that Section 8(b)(4)(D) has been
violated, and there is no agreed-upon method for the vol-
untary adjustment of the dispute. Accordingly, we deny
Local 12’s motion to quash the notice of hearing, and we
find that this 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 Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573, 577–579 (1961).
The Board has held that its determination in a jurisdic-

19 We find it unnecessary to decide whether the Employers were
bound to resolve this particular jurisdictional dispute under the Plan—
i.e., whether Sec. 2.4.8 of the PLA excludes the disputed work from the
PLA’s (and the Plan’s) coverage. All parties to the dispute must be
bound if an agreement is to constitute an agreed-upon method of volun-
tary adjustment, High Light Electric, above at 169, and we have found
that Local 47 is not bound to the Plan.
ELECTRICAL WORKERS LOCAL 47 7
tional dispute is “an act of judgment based on common
sense and experience,” reached by balancing the factors
involved in a particular case. Machinists Lodge 1743 (J.
A. Jones Construction), 135 NLRB 1402, 1410–1411
(1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Board certifications and collective-bargaining
agreements
The parties stipulated that the Employers are not fail-
ing to conform to an order or certification of the Board
determining the bargaining representative for the em-
ployees performing the work in dispute. However, both
Local 12 and Local 47 argue that their respective collec-
tive-bargaining agreements with the Employers entitle
the employees they represent to perform the disputed
work.
As noted above, the Employers are bound to the Out-
side Line Agreement with Local 47. The Outside Line
Agreement covers “[a]ll outside work on electrical
transmission lines, distribution lines, catenary and trolley
facilities, switch yards and substations,” including
“[p]ole line construction work,” work related to installa-
tion of “steel or metal structures used for the purpose of
carrying electrical wires, conductors or equipment,” and
“[i]nstalling and maintaining the catenary and trolley
work.” It also covers “the handling and operating of all
equipment . . . used to move, raise or place materials
used in the outside branch of the Electrical Industry.”
Finally, it includes the classification of Journeyman
Lineman, which is defined to include “men operating . . .
trucks equipped with . . . hydraulic mounted booms and
similar equipment.”
On the other hand, as indicated above, the Employers
dispute Local 12’s contention that the PLA encompasses
the disputed work. Assuming without deciding that the
disputed work is not excluded from the PLA, Local 12’s
MLA, which is incorporated into the PLA, sets forth a
prevailing wage classification for “Hydraulic Boom
Truck” under the Appendix B of the MLA.
“In interpreting collective-bargaining agreements, the
specific is favored over the general.” Steelworkers Local
392 (BP Minerals), 293 NLRB 913, 914–915 (1989).
Both agreements can be fairly read to include the disput-
ed work. However, Local 47’s contract covers not only
all work related to the installation of OCS systems but
also the operation of hydraulic boom trucks by Journey-
men Linemen. Because Local 47’s contract describes its
jurisdiction with greater specificity than does Local 12’s
contract, we find that this factor favors awarding the
work to employees represented by Local 47.
2. Employer preference, current assignment, and
past practice
Titan’s owner Brian Grant testified that Titan prefers
to assign, and has assigned, the work in dispute to em-
ployees represented by Local 47. Comstock’s program
manager Ramon Virgin testified that Comstock assigned
the disputed work to Local 47–represented employees
and prefers that the work continue to be performed by
those employees. In addition, the Employers’ repre-
sentatives testified that the Employers have assigned
work similar to the disputed work to employees repre-
sented by Local 47 at other projects in Southern Califor-
nia and that the Employers have never used employees
represented by Operating Engineers to perform work of
the kind in dispute. Therefore, we find that this factor
favors an award of the disputed work to employees rep-
resented by Local 47.
3. Area and industry practice
The Employers and Local 47 presented evidence that
area and industry practice supports an award of the dis-
puted work to employees represented by Local 47. A
representative of Mass Electric Construction Co. testified
that its employees represented by Local 47 have been
installing poles as part of an OCS system for the MTA’s
light rail line in Southern California. Local 47 Business
Manager Lavin testified that since 2004, Local 47–
represented employees have installed OCS poles for light
rail systems. Grant testified that Titan used IBEW-
represented linemen to install OCS poles for light rail
projects in San Jose, San Francisco, Sacramento, and San
Diego, California; Seattle, Washington; and Portland,
Oregon.
On the other hand, there is no evidence that Local 12–
represented employees have operated hydraulic boom
trucks to hoist electrical poles for OCS. Local 12 relies
primarily on referral request forms to demonstrate area
practice. The Board has rejected such forms as inconclu-
sive because they do not describe the actual work in-
volved or the related facts and circumstances surround-
ing the work. See, e.g., Laborers’ International Union of
North America, Local 860 (Ballast Construction, Inc.),
364 NLRB No. 126, slip op. at 5 fn. 8 (2016). Local 12
Business Representative Hunt’s testimony that he ob-
served Local 12–represented employees operating a hy-
draulic boom truck similarly fails to establish a clear area
practice with regard to the disputed work. Hunt admitted
that the incident occurred after he filed the grievances
against the Employers, and the record is unclear how
long the employees have performed the work. Besides,
Hunt acknowledged that those employees were perform-
ing the work to install street lights, not OCS. According-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ly, we find that this factor favors an award of the work in
dispute to employees represented by Local 47. See Car-
penters Local 171, 207 NLRB 406, 409 (1973) (The
Board is “reluctant to disturb area practice in making our
[Section 10(k)] awards absent some compelling rea-
son.”).
4. Relative skills and training
Both Local 47 and Local 12 presented evidence that
the employees each represents possess specific skills and
training relevant to the performance of the disputed
work. Local 47 is party to a joint labor-management
apprenticeship training program administered by the
IBEW/NECA California/Nevada Joint Apprenticeship
Training Committee. The apprenticeship program is a
three-and-half-year or 7000-hour program and offers
courses on mobile crane operation, which includes train-
ing to operate a hydraulic boom truck. At the conclusion
of the course, apprentices who pass an exam are certified
by the National Commission for the Certification of
Crane Operators (NCCCO). All of the Employers’ boom
truck operators, who are represented by Local 47, pos-
sess an NCCCO certification.
Similarly, Local 12 is also party to a joint labor-
management apprenticeship training program adminis-
tered by the Operating Engineers Training Trust (OETT).
The apprenticeship program is a three-year program and
offers courses on mobile crane operation. At the conclu-
sion of the course, apprentices who pass an exam receive
a crane certification from the Operating Engineers Certi-
fication Program (OECP). Larry Hopkins, Director of
Training for OETT, testified that both NCCCO and
OECP certifications satisfy California’s requirement that
all hydraulic boom truck operators be certified by an
accredited certifying entity.
The Employers and Local 47 argue that Local 47–
represented employees have superior skills and training
to perform the disputed work because they were trained
to work in a high-voltage environment.20 However,
Hopkins testified that OETT also provides apprentices
with training on how to operate cranes around electrical
lines and infrastructure. Based on the foregoing, we find
that this factor does not favor awarding the work to either
group of employees.
5. Economy and efficiency of operations
The Employers presented evidence showing that it is
more efficient and economical to assign the disputed
work to employees represented by Local 47. As indicat-

20 In contending that its members receive superior training, Local 47
references Hopkins’ testimony that OETT does not train an apprentice
to operate a hydraulic boom truck on rails. However, the disputed work
does not include driving the truck.
ed above, the disputed work is intermittent. The em-
ployees perform the disputed work only during the first
few hours of the workday, and they spend only 5–10
minutes loading and setting each pole. During the rest of
the workday, they perform other tasks related to OCS
installation. Grant testified that if an employee repre-
sented by Local 12 were to be used to perform the hoist-
ing work, which is the only portion of the OCS installa-
tion work Local 12 claims, he (Grant) would have to
stand around doing nothing while a Local 12–represented
employee operated the hoist, and that the Local 12–
represented employee would be idle when Local 47–
represented linemen performed other aspects of OCS
installation work. Grant also testified that Local 12–
represented employees do not perform the additional
tasks related to electrical work. Therefore, we find that
this factor favors an award of the disputed work to em-
ployees represented by Local 47. See, e.g., Electrical
Workers Local 71 (Thompson Electric, Inc.), 362 NLRB
1176, 1180 (2015) (Electrical Workers-represented em-
ployees performed disputed work only 25 or 30 percent
of the time, and performed other tasks not performed by
Operating Engineers-represented employees the rest of
the time); R&D Thiel, 345 NLRB at 1141 (considering
additional costs associated with one group of employees
sitting idle while another group works).
CONCLUSION
After considering all the relevant factors, we conclude
that employees represented by Local 47 are entitled to
perform the work in dispute. We reach this conclusion
relying on the factors of collective-bargaining agree-
ments; employer preference, current assignment, and past
practice; area and industry practice; and economy and
efficiency of operations. In making this determination,
we award the work to employees represented by Local
47, not to that labor organization or its members. Our
determination is limited to the controversy that gave rise
to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of L.K. Comstock National Transit, Inc.
and Titan Services, Inc. represented by International
Brotherhood of Electrical Workers Local 47 are entitled
to perform the operation of the hydraulic boom truck by
the Employers when it is hoisting steel, hollow electrical
poles in the Crenshaw/LAX Transit Corridor Project in
Los Angeles, California.
ELECTRICAL WORKERS LOCAL 47 9
Dated, Washington, D.C. June 18, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD