LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 265 (Henkels & McCoy)

National Labor Relations Board - Board Decisions

May 5, 2014

360 N.L.R.B. 819 (N.L.R.B. 2014)

LABORERS INTL. UNION OF NORTH AMERICA, LOCAL 265 819
360 NLRB No. 102
Laborers International Union of North America, Lo-
cal 265 and Henkels & McCoy, Inc. and Interna-
tional Union of Operating Engineers, Local 18.
Case 09–CD–116000
May 5, 2014
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. Henkels
& McCoy, Inc. (the Employer) filed a charge on October
30, 2013, alleging that Laborers International Union of
North America, Local 265 (Laborers), violated Section
8(b)(4)(D) of the Act by engaging in and/or encouraging
proscribed activity with an object of forcing the Employ-
er to assign certain work to employees represented by
Laborers rather than to employees represented by Inter-
national Union of Operating Engineers, Local 18 (Oper-
ating Engineers). A hearing was held on December 19,
2013, before Hearing Officer Tamilyn A. Thompson.
Thereafter, the Employer, Laborers, and Operating Engi-
neers filed posthearing briefs. Operating Engineers also
filed a motion to quash the Section 10(k) notice of hear-
ing.
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 the Employer, a Pennsylva-
nia corporation with an office in Blue Bell, Pennsylvania,
annually provides services valued in excess of $50,000
directly to customers outside the State of Pennsylvania.
The parties also stipulated, and we find, that the Employ-
er is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Laborers is a labor organ-
ization within the meaning of Section 2(5) of the Act.
We further find, consistent with the record and prior
Board decisions,1 that Operating Engineers is also a labor
organization within the meaning of Section 2(5) of the
Act.

1 See, e.g., Laborers Local 860 (Ronyak Paving, Inc.), 360 NLRB
236, 236 (2014); Laborers Local 894 (Donley’s Inc.), 360 NLRB 104,
104 (2014); Laborers Local 860 (McNally/Kiewit), 359 NLRB 724, 724
(2013).
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is engaged in utility construction, in-
cluding gas line work, nationwide. Its work is divided
into three regions (Eastern, Central, and Western); it per-
forms the most gas line work in its Eastern region. In the
Central region, the Employer contracts with Duke Ener-
gy to install, renew, and replace gas mains and service
lines in the greater Cincinnati area (the “Project”). The
Employer began performing work on the Project in 2001;
the Project is scheduled for completion in 2015. The
Project work relevant to this proceeding involves the
renewal and replacement of service lines extending from
the street curb line to a residence or business.
The Employer generally employs one to three service
line crews to perform Project work that includes excava-
tion, installation of lines, connection of service, and res-
toration of the area. Prior to May 2013, each crew con-
sisted of one employee represented by Laborers, one
employee represented by Operating Engineers, and one
employee represented by Pipefitters. The service com-
ponent consists of an employee first locating the existing
gas pipeline to be replaced and digging a trench with a
miniexcavator to expose the line. Throughout excava-
tion, which usually takes 2 or 3 hours, a laborer spots the
line with a shovel to ensure that the miniexcavator does
not hit the gas line. A portion of the old line is removed.
During this time, a pipefitter enters the residence or busi-
ness, disassembles the existing meter set, and prepares to
get the new line into the building. A laborer then inserts
a new pipe into the existing gas line, conducts pressure
tests, and fuses the existing and new pipes together to tie
the new pipe onto the main gas pipe. The latter work
may only be performed by employees who have com-
pleted a 40-hour specialized training class and been certi-
fied by Duke Energy. After reconnecting service, an
employee backfills the trenches using a miniexcavator if
the surface is sod or grass, or a skid steer if the surface is
improved (e.g., sidewalk, pavement). From 2001 until
May 2013, both laborers and operating engineers operat-
ed the miniexcavators and skid steers.
The Employer has had a collective-bargaining rela-
tionship with Laborers and Operating Engineers for ap-
proximately 12 years. It is party to the Ohio Statewide
Gas Distribution Agreement with Laborers. That agree-
ment covers “all gas distribution work performed in the
[S]tate of Ohio” and is effective from May 30, 2012 to
May 31, 2015. The Employer is also signatory to the
2010–2013 Distribution and Maintenance Agreement
between Operating Engineers and Distribution and
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Maintenance Contractors.2 That agreement covers “all
distribution pipeline construction and maintenance
work.”
In 2013, Operating Engineers and Distribution and
Maintenance Contractors negotiated a successor Distri-
bution and Maintenance Agreement effective from June
1, 2013 to May 31, 2017. That agreement adds a work-
preservation clause stating:
If the employer assigns any piece of equipment to
someone other than the Operating Engineers the Em-
ployer’s penalty shall be to pay the first qualified regis-
tered applicant the applicable wages and fringe benefits
from the first day of the violation until the end of the
assignment. The Employer recognizes that the viola-
tion is a breach of the Distribution and Maintenance
Contractors collective bargaining agreement and that
the breach cannot be corrected by a reassignment of the
work. The Union likewise understands that this para-
graph prohibits it from requesting a reassignment of the
work, thereby limiting its relief for the breach to dam-
ages as provided herein.
The agreement, by its terms, requires that all “Employers
must sign individual copies of this Agreement to be
bound hereby.” At the time of the hearing, the Employer
was observing the terms of the expired 2010–2013 Dis-
tribution and Maintenance Agreement and had not signed
the 2013–2017 agreement.3

2 The “Duration” section of the 2010–2013 Distribution and
Maintenance Agreement provided that it would automatically renew
absent either party giving written notice of its desire to renegotiate it at
least 60 days prior to its expiration date on May 31, 2013. In a March
1, 2013 letter, Operating Engineers notified the Employer that it desired
to renegotiate the agreement. Both Operating Engineers (at the hear-
ing) and Laborers (in its posthearing brief) contend that this letter oper-
ated to negate the automatic renewal provision. Based on the agree-
ment’s own terms, we find that the Employer’s collective-bargaining
agreement with Operating Engineers expired on May 31, 2013. See
Carpenters Northeast Ohio Council Local 1929 (Luedtke Engineering),
307 NLRB 1323, 1325 (1992).
3 Operating Engineers argues that the hearing officer prejudiced it
by prohibiting questioning of the Employer’s Labor Contracts Coordi-
nator Susan Gannon regarding whether (1) she believed that the Em-
ployer is bound to the 2013–2017 Distribution and Maintenance
Agreement, and (2) the Employer was paying wages and benefits speci-
fied in that agreement. We find no prejudicial error. First, Gannon’s
subjective belief is irrelevant to whether the Employer is bound to the
2013–2017 agreement. Second, even assuming that the Employer were
bound to the 2013–2017 agreement, that would not change our analysis
below that there are competing claims to the work and that Operators
Engineers, by its conduct, sought to acquire, not merely to preserve,
work. Indeed, the Board very recently rejected a work preservation
argument where, as here, a union claimed that its collective-bargaining
agreement prohibited it from seeking the actual assignment of work and
limited its relief to economic damages. Laborers Local 894 (Donley’s,
Inc.), 360 NLRB 104 (2014).
Sometime before May 2013,4 Laborers’ Field Repre-
sentative Justin Phillips received complaints from his
members about harassment by Operating Engineers’ rep-
resentatives who showed up at the Employer’s jobsites.
According to Phillips, Operating Engineers’ representa-
tives confronted Laborers-represented employees and job
foremen, stating that laborers could not be on miniexca-
vators and skid steers.5 In May, Phillips asked the Em-
ployer to sign a local contract with Laborers and assign
the disputed work to employees represented by Labor-
ers.6 Phillips also informed the Employer that its com-
petitors on the Project were using laborers to perform the
work in dispute.
The Employer subsequently decided to reduce the size
of its service line crews from three employees to two,
and to assign the disputed work exclusively to employees
represented by Laborers. The Employer made the
change because it wanted to be more competitive with
other contractors working on the Project, which were
using two-person service line crews, consisting of one
Laborers-represented employee and one Pipefitters-
represented employee. In recent years, Duke Energy has
awarded only a few modules7 to the Employer; by chang-
ing to a two-person crew, the Employer hoped to reduce
costs in order to retain, and potentially expand, Project
work. On May 21, the Employer sent separate letters to
Laborers and Operating Engineers informing them that,
effective immediately, it would be switching to two-
person crews consisting of one laborer and one pipefit-
ter.8 The letter further stated that it would no longer be

4 All subsequent dates are in 2013, unless stated otherwise.
5 The Employer’s area supervisor, Rod Eversole, corroborated
Philips’ testimony regarding jobsite visits by Operating Engineers’
business representatives. Eversole testified that Foreman Scott Brown
informed him that in April, Operating Engineers’ Business Representa-
tive Nate Brice visited a jobsite, and that upon learning that an employ-
ee represented by Laborers was operating a miniexcavator, Brice told
Brown that he would write a grievance. Brice acknowledged that he
had probably observed someone other than a person represented by
Operating Engineers operating a miniexcavator or a skid steer in April
and that he had run into Brown before June 4. Eversole also testified
that Operating Engineers Business Representative Jeff Powell had
previously come onto a jobsite and told Brown that he was not allowed
on the miniexcavators, effectively shutting the job down for the day.
The next morning, Powell told Eversole that if anyone other than an
operator was on the excavator, he would take pictures the entire time;
work ceased until Eversole could bring an operator down from another
site.
6 The Employer did not sign the local contract.
7 Modules refer to individual jobs typically consisting of the instal-
lation of gas mains and service lines in a certain geographic area.
8 The record shows that the Employer’s May 21 decision to utilize
two-person crews was not immediately applied across the field. One
employee represented by Operating Engineers performed the disputed
work on June 14, and was laid off from the Employer’s service crew on
June 17.
LABORERS INTL. UNION OF NORTH AMERICA, LOCAL 265 821
employing operating engineers on its service crews and
that it would be assigning the work to laborers. Current-
ly, as has been typical in its Eastern region, the service
crews are comprised of one laborer and one pipefitter.
On June 4, Operating Engineers’ Business Representa-
tive Nate Brice visited jobsites where the Employer was
performing service work. At the Woodburn-Taft site,
Brice observed Foreman Scott Brown operating a
miniexcavator. Brice approached and asked Brown
whether he was represented by Operating Engineers.
When Brown said “no,” Brice read him the “Miranda
card,” which states that the Employer assigned “someone
other than an Operating Engineer” to operate equipment
in violation of its contract with Operating Engineers and
that Operating Engineers seeks damages, not the reas-
signment of work. On June 5, Brice filed a pay-in-lieu
grievance against the Employer, seeking contractual
damages for the alleged breach of the 2013–2017 agree-
ment.
On June 14, the Employer and Operating Engineers
met to discuss three grievances, including the Woodburn-
Taft grievance.9 The parties generally discussed the ap-
plicability of the contractual damages provision and
whether the controversy was a jurisdictional dispute.
The parties disagreed on these points and were unable to
resolve the grievances. The Employer’s representatives
testified that Operating Engineers made “very clear” at
this meeting that it was objecting to the move to two-
person crews and the elimination of operating engineers
from the service work.
On July 22, in pursuit of its Woodburn-Taft grievance,
Operating Engineers filed a demand for arbitration with
the American Arbitration Association regarding the skid
steer and miniexcavator work on the Duke Energy ser-
vice lines. In a letter dated July 29, the Employer’s vice
president and director of labor relations, Stephen Freind,
informed Phillips that Operating Engineers had filed for
arbitration and that the Employer therefore intended to
reassign the operation of miniexcavators and skid steers
to Operating Engineers. In a letter dated August 9, La-
borers refused to disclaim the work in dispute and ad-
vised the Employer that if it reassigned the work from
Laborers to Operating Engineers, Laborers “will take any
and all actions necessary to preserve our work, including
but not limited to, picketing and work stoppages on the
Project.”
B. Work in Dispute
The Employer and Laborers stipulated that the disput-
ed work includes the operation of miniexcavators and
skid steers on the Employer’s service line crews working

9 Two of the grievances did not involve the disputed service work.
on Duke Energy gas service lines in the Cincinnati, Ohio
area. Operating Engineers initially qualified its stipula-
tion as to miniexcavators, stating that it was unclear what
equipment was meant by a miniexcavator and that it
wanted to have that developed at the hearing. Employer
witnesses testified that John Deere model 35D is the
primary brand and model it uses as a miniexcavator on
the service line work, and that it does not consider any-
thing larger than the John Deere 35D or similar equip-
ment to be a miniexcavator. Operating Engineers’ coun-
sel subsequently stated on the record that “we’ve already
identified the equipment at issue as being a John Deere
35D or similar type of equipment.” Accordingly, we
find that the work in dispute is the operation of miniex-
cavators, not larger than the John Deere 35D or similar
equipment, and skid steers by the Employer’s service
line crews working on Duke Energy gas service lines in
the Cincinnati, Ohio area.
C. Contentions of the Parties
Operating Engineers moves to quash the notice of
hearing, arguing that it has not claimed the disputed work
and that there is no reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. In support of its mo-
tion, Operating Engineers contends that its claim is one
of work preservation for the employees it represents ra-
ther than work acquisition. It asserts that it simply pur-
sued contractual grievances against the Employer for
breaching the work preservation provision of the 2013–
2017 Distribution and Maintenance Agreement and that
it requested only the contractually prescribed damages
for the breach. Operating Engineers further contends that
the Employer is not the “innocent” employer, caught
between two competing unions claiming the same work,
for whom Congress intended to provide relief under Sec-
tion 10(k). According to Operating Engineers, the Em-
ployer engaged in collusion with Laborers to create the
appearance of a jurisdictional dispute.
Alternatively, if the notice of hearing is not quashed,
Operating Engineers asserts that the work in dispute
should be awarded to employees it represents based on
the factors of collective-bargaining agreements, area and
industry practice, economy and efficiency of operations,
employer preference, and relative skills and training.
Operating Engineers argues that the evaluation of econ-
omy and efficiency must take into account that, in its
view, the Employer will have to pay contractual damages
if the work in dispute is not awarded to Operating Engi-
neers-represented employees. It also argues, in effect,
that the Employer’s preference here is tainted by its at-
tempt to avoid its contractual obligations to Operating
Engineers.
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Employer and Laborers each contend that the no-
tice of hearing should not be quashed, because compet-
ing claims to the disputed work, including Operating
Engineers’ June 5 grievance, show the existence of a
genuine jurisdictional work dispute. They further con-
tend that the evidence of threats to picket and/or engage
in work stoppages over job assignments demonstrates
that there is reasonable cause to believe that Section
8(b)(4)(D) has been violated. Further, the Employer and
Laborers assert that there is no agreed-upon method of
voluntary adjustment of this dispute. On the merits, the
Employer and Laborers assert that the work in dispute
should be awarded to employees represented by Laborers
based on the factors of the parties’ collective-bargaining
agreements, employer preference, past practice, area and
industry practice, relative skills and training, and econo-
my and efficiency 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. Operating Engineers Local 150 (R&D Thiel),
345 NLRB 1137, 1139 (2005). This standard requires
finding that there is reasonable cause to believe that: (1)
there are competing claims to the disputed work; (2) a
party has used proscribed means to enforce its claim to
the work in dispute; and (3) the parties have not agreed
on a method for the voluntary adjustment of the dispute.
On this record, we find that this standard has been met.
1. Competing claims for work
We find that there is reasonable cause to believe that
both unions have claimed the work in dispute for the
employees they respectively represent. Laborers has
claimed the work by its August 9 letter, objecting to any
assignment of the service work of operating a miniexca-
vator or a skid steer to Operating Engineers-represented
employees. Even absent this specific claim, the perfor-
mance of the disputed work by Laborers-represented
employees here constitutes evidence of a claim for the
work. See Seafarers International Union (Luedtke Engi-
neering Co.), 355 NLRB 302, 303 (2010), quoting Oper-
ating Engineers Local 513 (Thomas Industrial Coatings),
345 NLRB 990, 992 fn. 6 (2005).
Despite its argument to the contrary, Operating Engi-
neers has also claimed the disputed work. Operating
Engineers’ Field Representative Brice told the Employ-
er’s area supervisor and foreman that he would file a
grievance against the Employer because someone other
than an Operating Engineers-represented employee oper-
ated a miniexcavator in violation of its contract with Op-
erating Engineers. See Laborers Local 113 (Michels
Pipeline Construction), 338 NLRB 480, 482 (2002). In
addition, by filing the pay-in-lieu grievance against the
Employer alleging contract violations with respect to its
assignment of the service work, the Operating Engineers
effectively claimed the work. See, e.g., Laborers Local
860 (Ronyak Paving, Inc.), 360 NLRB 236, 239 (2014);
Laborers Local 265 (AMS Construction), 356 NLRB
306, 308 (2010) (pay-in-lieu grievance may constitute a
competing claim for work); Local 30, United Slate, Tile
& Composition Roofers v. NLRB, 1 F.3d 1419, 1427 (3d
Cir. 1993), enfg. 307 NLRB 1429 (1992) (attempted dis-
tinction “between seeking the work and seeking payment
for the work is ephemeral”). According to the Employ-
er’s representatives, Operating Engineers made clear
during the June 14 grievance meeting that operating en-
gineers should be performing the disputed work. More-
over, during the 10(k) hearing, Operating Engineers’
counsel, while asserting that the grievance was merely a
contractual claim for damages rather than a claim for
work, refused to stipulate that Operating Engineers dis-
claimed the work. See Electrical Workers Local 71
(Capital Electric Line Builders, Inc.), 355 NLRB 140,
142 (2010) (treating statements made on the record at the
10(k) hearing as a claim for work).
Operating Engineers argues that the Employer has not
identified with specificity any statement made at the
grievance hearing that constitutes a claim for the disput-
ed work. Operating Engineers also argues that its pay-in-
lieu grievance did not constitute a claim for the disputed
work because photos taken to support the grievance show
a John Deere 80C, equipment not at issue here. We find
both of these arguments unavailing. First, in 10(k) pro-
ceedings, a direct conflict in testimony, much less a lack
of specificity, does not prevent the Board from finding
evidence of reasonable cause and proceeding with a de-
termination of the dispute. See J. P. Patti Co., 332
NLRB 830, 832 (2000); Electrical Workers Local 363
(U.S. Information Systems), 326 NLRB 1382, 1383
(1998) (conflicting versions of event did not preclude the
Board from finding reasonable cause). Second, we note
that the June 5 grievance, which Brice testified he filed
after seeing Brown operating a miniexcavator, does not
reference any particular piece of equipment. Thus, as
above, even assuming some conflicting testimony re-
garding the photos, we find reasonable cause to proceed
to the determination of the dispute.
We reject Operating Engineers’ contention that this is
a work preservation dispute outside the scope of Section
10(k) of the Act. To prevail on this argument, Operating
Engineers must show that the employees it represents
have previously performed the work in dispute and that it
is not attempting to expand its work jurisdiction. Team-
LABORERS INTL. UNION OF NORTH AMERICA, LOCAL 265 823
sters Local 174 (Airborne Express), 340 NLRB 137, 139
(2003). Operating Engineers has failed to make the latter
showing. Freind testified, without contradiction, that the
Employer has previously assigned the disputed work to
both Laborers and Operating Engineers. The record es-
tablished that both Laborers-represented employees and
Operating Engineers-represented employees have per-
formed the disputed work for the Employer prior to May
2013.10 Although the instant dispute arose after the Em-
ployer’s exclusive assignment of the work traditionally
performed by both unions to Laborers, the same type of
disputes over the assignment of miniexcavators and skid
steers has been “ongoing” even before the Employer’s
decision in May. As such, the “origin of the dispute”
arose when Operating Engineers claimed all of the dis-
puted work, including that previously performed by em-
ployees represented by Laborers. See Teamsters Local
578 (USCP-Wesco), 280 NLRB 818, 820 (1986) (the
Board looks to “the real nature and origin” of the dispute
in determining whether a jurisdictional dispute exists),
affd. sub nom. USCP-Wesco, Inc. v. NLRB, 827 F.2d 581
(9th Cir. 1987).11 Therefore, Operating Engineers’ ob-
jective here was not that of work preservation, but of
work acquisition. See Teamsters Local 20 (Midwest

10 Operating Engineers, in its posthearing brief, acknowledged that
employees it represents have never performed the disputed work exclu-
sively. Nevertheless, it contends that exclusive performance is not a
prerequisite to a work preservation defense. However, in determining
whether there is a jurisdictional dispute or a contractual dispute be-
tween an employer and a union, the Board considers exclusivity as an
important factor. See Recon Refractory & Construction v. NLRB, 424
F.3d 980, 990–991 (9th Cir. 2005), denying petition for review of
Board order quashing notice of hearing in 339 NLRB 825 (2003) (con-
tractual dispute over the work traditionally performed by one union
assigned away to another union that had not previously performed it);
Teamsters Local 107 (Safeway Stores), 134 NLRB 1320, 1323 (1961)
(declining to apply Sec. 10(k) where employer unilaterally created the
dispute by transferring the work away from the only group previously
claiming and performing it under a collective-bargaining agreement).
The Board, in fact, did not quash the notice of hearing where an em-
ployer, that initially used two unions to perform the work, gave the
work to one union. See Operating Engineers Local 478 (Delu-
ca/Lombardo), 314 NLRB 589 (1994); District No. 10, IAM (Ken The-
len), 264 NLRB 1356 (1982). In any event, in the above-cited cases
where the Board found a valid work preservation claim, employers
made the assignment in violation of a contractual provision prohibiting
such assignment of the disputed work. As Operating Engineers has
failed to present any current collective-bargaining agreement to which
the Employer is bound, and which would therefore mandate assignment
of the disputed work to Operating Engineers, we reject Operating Engi-
neers’ work preservation defense.
11 We note that the Employer’s decision to assign the disputed work
exclusively to Laborers was prompted by information supplied by
Laborers’ Field Representative Phillips to the Employer showing that
its competitors were using Laborers to perform the disputed work.
Phillips wanted to stop his members from being harassed by Operating
Engineers’ representatives for performing work covered by Laborers’
collective-bargaining agreement.
Terminals of Toledo International), 359 NLRB 983, 984
(2013); Carpenters (Prate Installations, Inc.), 341 NLRB
543, 545 (2004).
2. Use of proscribed means
By its August 9 letter, Laborers threatened to engage
in picketing and work stoppages if the Employer as-
signed the service work of operating skid steers and
miniexcavators to employees represented by Operating
Engineers. Such a threat establishes reasonable cause to
believe that Laborers used means proscribed by Section
8(b)(4)(D) to enforce its claim to the work in dispute.
Electrical Workers, Local 48 (Kinder Morgan Termi-
nals), 357 NLRB 2217, 2218 (2011).
We find no merit in Operating Engineers’ contention
that Laborers’ threat to picket and stop work was a sham
and the product of collusion between the Employer and
Laborers to invoke Section 10(k) and to avoid Operating
Engineers’ contractual damages provision. The Board
has consistently rejected this argument where, like here,
there is no affirmative evidence that Laborers’ threat was
not genuine or that it was a product of collusion with the
Employer. See Operating Engineers Local 150 (R&D
Thiel), 345 NLRB 1137, 1140 (2005) (finding insuffi-
cient evidence of collusion where union told the employ-
er’s president that it wanted him to “file a 10(k)”);
Plumbers Local 562 (Grossman Contracting), 329
NLRB 516, 520 (1999). That the Employer provided
Laborers with Operating Engineers’ grievances is not
affirmative evidence of collusion. See Electrical Work-
ers, Local 196 (Aldridge Electric), 358 NLRB 737, 739
(2012) (evidence of cooperation between employer and
union during 10(k) proceeding does not demonstrate that
threat was product of collusion). Nor is the evidence that
Laborers provided examples of other contractors employ-
ing its members affirmative evidence of collusion. See
R&D Thiel, above at 1139 (finding union’s request to
employer to sign an agreement to use its members for the
job to be a claim for work).
3. No voluntary method for adjustment of dispute
The parties stipulated, and we find, that there is no
agreed-upon method for voluntary adjustment of this
dispute to which all parties are bound.
Because we find that all three prerequisites for the
Board’s determination of a jurisdictional dispute are es-
tablished, we deny Operating Engineers’ motion to quash
the notice of hearing and find that this dispute is properly
before the Board for resolution.
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-
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lumbia Broadcasting), 364 U.S. 573, 577–579 (1961).
The Board’s determination in a jurisdictional dispute is
“an act of judgment based on common sense and experi-
ence,” reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J.A. Jones Con-
struction), 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 there are no Board orders or
certifications determining the collective-bargaining rep-
resentative of the employees performing the work in dis-
pute. Both Laborers and Operating Engineers, however,
assert that their respective collective-bargaining agree-
ments with the Employer entitle them to the disputed
work.
Article I of the Laborers’ Ohio Statewide Gas Distri-
bution Agreement includes a jurisdictional clause that
covers “all gas distribution work performed in the State
of Ohio.” It specifically describes the covered work as
including “the digging and trimming of trenches and
ditches for utility lines, . . . the bending of pipe, . . . the
distribution of pipe and skids and placing of said skids
and pipe over the trench; the cleaning, wrapping and
doping of the pipe . . . ; work in connection with the low-
ering of the pipe and the removal of the skids . . . [and]
the backfilling of trenches after the pipe has been laid.”
Article I of the Operating Engineers’ 2010–2013 Dis-
tribution and Maintenance Agreement (the agreement in
effect at the time of the assignment) includes a jurisdic-
tional clause that covers “all distribution pipeline con-
struction and maintenance work. . . .” It specifically de-
scribes the covered work as “construction, installation,
treating, repair, and/or reconditioning of distribution
pipeline . . . which transport natural gas, liquid gas or
vapors, . . . including portions of the work within private
property boundaries or public streets, from the first me-
tering station or connection at the main transmission line
. . . to the Consumer or User.” The agreement includes a
wage rates and classifications section which classifies
backhoe/excavator (all sizes) operators as group A oper-
ating engineers and skid steer loaders as group B operat-
ing engineers. However, article II clarifies that the “fact
that certain classifications and rates are established does
not mean that the Employer must employ workmen for
any one or all such classifications, or must man all items
of equipment on the job.”
“In interpreting collective-bargaining agreements, the
specific is favored over the general.” Laborers Local
1184 (Golden State Boring & Pipejacking), 337 NLRB
157, 159 (2001), quoting Steelworkers Local 392 (BP
Minerals), 293 NLRB 913, 914–915 (1989). Laborers
argue that its collective-bargaining agreement favors an
award to Laborers-represented employees because, un-
like the more general language in the Operating Engi-
neers’ agreement, its agreement contains a specific de-
scription covering the work in dispute. Operating Engi-
neers, citing Laborers Local 265 (AMS Construction),
356 NLRB 306 (2010), argues that the factor of collec-
tive-bargaining agreements weighs in its favor because
its contract covers both the disputed work and specifical-
ly identifies the construction equipment at issue, i.e., skid
steers and miniexcavators. We find that Laborers and
Operating Engineers both have language in their agree-
ments arguably covering the work in dispute. As the
record shows, Laborers’ collective-bargaining agreement
is more specific in its description of the work at issue,
whereas Operating Engineers’ collective-bargaining
agreement, while referencing specific classifications in
its wage scales, contains a more general description of
pipeline work. Under these circumstances, we do not
find that the factor of collective-bargaining agreements
favors awarding the work to employees represented by
either union. See generally Laborers Local 1184 (High
Light Electric), 355 NLRB 167, 169 (2010).12
2. Employer preference and current assignment
The factor of employer preference is generally entitled
to substantial weight. See Iron Workers Local 1 (Goebel
Forming), 340 NLRB 1158, 1163 (2003). Area Manager
Maxwell and Area Supervisor Eversole testified that it is
the Employer’s preference for Laborers-represented em-
ployees to perform the work in dispute,13 and those em-
ployees are currently performing this work. Laborers
Local 265 (AMS Construction), above, slip op. at 5
(weighing employer’s stated preference as well as em-

12 We also reject Laborers’ claim that the factor of collective-
bargaining agreements favors awarding the disputed work to Laborers
because Operating Engineers’ 2010–2013 agreement expired. The
Employer admitted that it made the assignment of the work in dispute
on May 21, when it was bound to the 2010–2013 Distribution and
Maintenance Agreement. “[W]e look to the state of the Employer’s
contractual obligations at the time it made the assignment of work.”
Carpenters Northeast Ohio Council Local 1929 (Luedtke Engineering),
307 NLRB 1323, 1325 (1992).
13 We reject Operating Engineers’ contention that the Employer’s
preference should be treated with “skepticism” because it is not “repre-
sentative of a free and unencumbered choice,” citing ILWU Local 50
(Brady-Hamilton Stevedore Co.), 223 NLRB 1034, 1037 (1976), recon-
sideration granted and decision rescinded on other grounds 244 NLRB
275 (1979). There, the Board accorded little weight to the employer
preference factor where that preference changed after the charged union
initiated a work action. Id. Here, in contrast, the Employer has main-
tained a consistent preference for Laborers-represented employees,
even when faced with a pay-in-lieu grievance filed by Operating Engi-
neers. Therefore, we accord this factor its customary weight.
LABORERS INTL. UNION OF NORTH AMERICA, LOCAL 265 825
ployer’s assignment of work in dispute). Further, as dis-
cussed below, the Employer’s preference is supported by
considerations of economy, efficiency, and skill, all of
which are legitimate, traditional factors relevant to
awarding work in dispute. Compare e.g., Graphic Com-
munications Workers Local 508M (Jos. Berning Print-
ing), 331 NLRB 846, 848 (2000) (declining to assign
substantial weight to employer preference where the em-
ployer’s preference is based on preference for “a stronger
union” rather than traditional factors). Accordingly, we
find that this factor favors an award of the disputed work
to employees represented by Laborers.
3. Past practice
Since the Employer began working on the Project in
2001, its practice has been to use both employees repre-
sented by Laborers and employees represented by Oper-
ating Engineers to perform the disputed work. As the
Employer’s practice has never been to assign the work
exclusively to either group of employees, the Employer’s
past practice does not favor an exclusive award of the
disputed work to employees represented by either Union.
4. Area and industry practice
Both Laborers and Operating Engineers presented let-
ters of assignment from contractors, indicating that em-
ployees they represent have performed skid steer and
excavator work for these contractors at various jobsites
in Ohio. The parties stipulated at the hearing that Oper-
ating Engineers Local 18 received 1705 referrals for ex-
cavators and 186 referrals for skid steers in 2013, 1567
and 147 in 2012, 1512 and 152 in 2011, 1482 and 99 in
2010, and 1241 and 99 in 2009. According to Operating
Engineers’ President Richard Dalton, these referrals re-
flected dispatch requests by contractors for operating
engineers with the ability to operate skid steers or
miniexcavators. However, neither the letters of assign-
ment submitted by both Unions nor the referrals relied on
by Operating Engineers (which often did not distinguish
between excavators and miniexcavators) describe with
meaningful specificity the work involved or the circum-
stances surrounding the assignment of an employee to
perform it. This evidence is therefore inconclusive. See
Laborers Local 860 (Ronyak Paving, Inc.), 360 NLRB
No. 40, slip op. at 5–6 (2014).
Freind testified that in the Eastern region where the
Employer performs most of its service line work, the
Employer has always used a two-person crew consisting
of one laborer and one pipefitter. Maxwell testified that
in the 13 states for which he is responsible as the Em-
ployer’s area manager, employers use laborers to operate
skid steers and miniexcavators on service line work.
Phillips testified that other employers performing the
service work for Duke Energy (the Employer’s competi-
tors) always use laborers to perform the disputed work.
In contrast, Operating Engineers offered limited testi-
mony as to any area or industry practice of using em-
ployees it represents to perform work of the type that is
in dispute. Dalton testified that operating engineers have
been operating skid steers and miniexcavators for con-
tractors who are signatory to the Distribution and
Maintenance Agreement since the 1970s. Although skid
steers and miniexcavators are used both in gas main and
service line work, Dalton did not specify for which type
of work the two pieces of equipment were used. Like-
wise, Philips testified that he observed another employer
use an operating engineer to operate a miniexcavator
without specifying whether the work was for the service
lines or the main lines. Based on all of the above, we
find that area and industry practice favors an award of
the work in dispute to employees represented by Labor-
ers.
5. Relative skills and training
The Employer and Laborers presented testimony that
employees represented by Laborers possess the requisite
skills and training to perform the disputed work and that
they are experienced in doing so. Specifically, both
Maxwell and Eversole testified that employees repre-
sented by Laborers have demonstrated that they possess
the necessary skills and expertise to operate skid steers
and miniexcavators on the Employer’s service work.
Phillips testified that he has received no complaints from
the Employer about the work performed by Laborers-
represented employees on skid steers and miniexcava-
tors. Maxwell testified that Laborers-represented em-
ployees have received on-the-job training from the Em-
ployer as well as 40-hour specialized training for han-
dling pipes from Duke Energy. Phillips testified that the
Ohio Laborers’ training center offers a 6-hour skid steer
class.
Operating Engineers also presented testimony that em-
ployees it represents possess the requisite skills and train-
ing to perform the disputed work. Donald Black, the
administrative manager of the Ohio Operating Engineers
Apprenticeship Training Fund, testified that Operating
Engineers has four training sites in Ohio. At these sites,
Operating Engineers offers skid steer and excavator clas-
ses that include written examinations and practical skills
tests, as well as specialized training for excavation in the
pipeline.14 The record also establishes that employees
represented by Operating Engineers have been perform-
ing the work for a substantial period of time. The Em-

14 Operation of miniexcavators is taught as part of a broader excava-
tor class.
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer provided testimony that it considered some of the
disputed work performed by these employees unsatisfac-
tory. However, the Employer continued to make as-
signments to employees represented by Operating Engi-
neers until deciding, for reasons unrelated to their skills
and performance, to assign the work in dispute exclu-
sively to employees represented by Laborers. Accord-
ingly, we find that this factor does not favor an assign-
ment of the work to either group of employees.15
6. Economy and efficiency of operations
Maxwell testified that it is more economical and effi-
cient to assign the disputed work to employees represent-
ed by Laborers because these employees perform other
work in addition to the disputed work. Both Maxwell
and Freind testified that Laborers-represented employees
spend only 2–3 hours per day performing the disputed
work and the remainder of a workday performing other
duties that Operating Engineers-represented employees
did not perform and were not trained to perform. Max-
well also indicated that Operating Engineers-represented
employees were paid for a full day but, after digging a
ditch, “spent a large portion of their day standing
around” before having to backfill the ditch.16 According-
ly, we find that the factor of economy and efficiency of
operations favors awarding the disputed work to the
more versatile employees, the employees represented by

15 Contrary to Operating Engineers’ assertion, Laborers (Henkels &
McCoy, Inc.), 336 NLRB 1044, 1045 (2001), does not warrant a differ-
ent result. There, the Board found that the disputed work should be
awarded to the union which provided comprehensive formal training,
rather than to the union which provided no formal training but instead
expected employees to learn “on the job.” Here, not only do the em-
ployees represented by Laborers receive some formal training, they also
have been performing the disputed work to the Employer’s satisfaction.
16 Operating Engineers contends that the hearing officer, by sustain-
ing an objection to its question about the “intent and purpose” of the
composite crew clause in the collective-bargaining agreement, commit-
ted prejudicial error by denying it an opportunity to develop testimony
regarding the economy and efficiency of operations factor. We find no
prejudicial error. The composite crew clause is in evidence, and Oper-
ating Engineers elicited testimony from Maxwell that two to three
operating engineers could perform the other work that Laborers-
represented employees performed in addition to the disputed work. In
any event, although Operating Engineers may be correct that the Em-
ployer could order the employees represented by Operating Engineers
to perform other work under the composite crew clause, the evidence
shows that only a few Operating Engineers-represented employees
possess the training to perform such work. In any event, Maxwell
testified that the issue is not so much that operating engineers “can’t”
do the work as that they “won’t” do the work; his supervisors have told
him that operators are not interested in doing anything other than oper-
ating the equipment.
Laborers.17 See, e.g., Laborers (Eshbach Bros., LP), 344
NLRB 201, 204 (2005); Seafarers International Union
(Luedtke Engineering), 355 NLRB 302, 305 (2010)
(weighing interchangeable job skills and ability to use
smaller crews in awarding work); Operating Engineers
Local 150 (R&D Thiel), 345 NLRB 1137, 1141 (2005)
(one group of employees sitting idle while another group
works); Laborers Local 113 (Michels Pipeline Construc-
tion), 338 NLRB 480, 484 (2002) (“[h]aving fewer em-
ployees accomplishing the same task . . . reduces costs in
time, money, and personal safety).
CONCLUSION
After considering all of the relevant factors, we con-
clude that employees represented by Laborers are entitled
to perform the work in dispute. We reach this conclusion
relying on the factors of employer preference, area and
industry practice, and economy and efficiency of opera-
tions. In making this determination, we award the work
to employees represented by Laborers, not to that labor
organization or to its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Henkels & McCoy, Inc., represented by
Laborers International Union of North America, Local
265, are entitled to perform the service line work utiliz-
ing a miniexcavator (defined as a John Deere 35D or
similar equipment) and skid steers by the Employer’s
service line crews working on the Duke Energy project
in the Cincinnati, Ohio area.

17 Operating Engineers argues that assigning the work in dispute to
employees represented by Laborers would not be economical because
doing so would subject the Employer to damages resulting from its
breach of the work preservation clause in the 2013–2017 Distribution
and Maintenance Agreement. We reject this argument because: (1)
Operating Engineers has not shown that the Employer is bound to the
2013–2017 Distribution and Maintenance Agreement, (2) pursuing a
pay-in-lieu grievance after the Board has awarded the work in dispute
violates Sec. 8(b)(4)(ii)(D), see Machinists Lodge 160 (SSA Marine,
Inc.), 360 NLRB No. 64, slip op. at 3 (2014), and cases cited therein,
and (3) when analyzing economy and efficiency in a 10(k) dispute, the
Board does not consider whether a successful grievance would subject
an employer to financial liability for breach of contract, see Laborers’
Local 860 (McNally/Kiewit), 359 NLRB 724, 729 fn. 7 (2013).
We also find unpersuasive Operating Engineers’ citations to Team-
sters Local 1187 (Anheuser-Busch, Inc.), 258 NLRB 997, 1001 (1981)
and Glaziers Local 1621 (Hart Glass Co.), 216 NLRB 641, 643 (1975)
in support of its argument that assigning the work in dispute to Labor-
ers-represented employees would not be economical. Both of those
cases are factually distinguishable.