US Utility Contractor Co.

National Labor Relations Board - Board Decisions

Jul 30, 2010

355 N.L.R.B. 344 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 59
344
International Brotherhood of Electrical Workers,
Local No. 71 and US Utility Contractor Com-
pany, Inc. and Laborers’ International Union of
North America, Local 1216. Case 8–CD–506
July 30, 2010
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
US Utility Contractor Company, Inc. (the Employer),
filed a charge on January 11, 2010, alleging that Interna-
tional Brotherhood of Electrical Workers, Local No. 71
(Electrical Workers) violated Section 8(b)(4)(D) of the
Act by engaging in proscribed activity with an object of
forcing the Employer to assign certain work to employ-
ees represented by Electrical Workers rather than to em-
ployees represented by Laborers’ International Union of
North America, Local 1216 (Laborers). The hearing was
held on February 8, 2010, before Hearing Officer Greg-
ory M. Gleine. At this hearing, Laborers orally moved to
quash the notice of hearing. After the hearing officer
referred this motion to the Board for ruling, Laborers
filed a memorandum in support of its motion to quash,
and the Employer and Electrical Workers each filed a
memorandum in opposition to Laborers’ motion to
quash. The Employer, Electrical Workers, and Laborers
also filed posthearing briefs.
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 re-
cord, the Board makes the following findings
I. JURISDICTION
The Employer is a Perrysburg, Ohio-based electrical
contractor engaged in outdoor electrical work, including
the construction and installation of highway and traffic
signal lights, highway lighting, and streetscape lighting.
The parties stipulated that during the 12-month period
prior to January 12, 2010, the Employer purchased goods
from outside the State of Ohio valued in excess of
$50,000, and performed services in states other than the
State of Ohio valued in excess of $50,000. The parties
further stipulated that the Employer is an employer
within the meaning of Section 2(2) of the Act, and we
find that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The parties addition-
ally stipulated, and we find, that Electrical Workers and
Laborers are labor organizations within the meaning of
2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a signatory, through the National
Electrical Contractors Association (NECA), to a collec-
tive-bargaining agreement with Electrical Workers for
outside electrical work (outside agreement), effective
December 31, 2007, to January 3, 2010. That agreement
covers the “installation and maintenance of highway and
street lighting, highway and street sign lighting, elec-
tronic message boards and traffic control systems, cam-
era systems, traffic signal work, substation and line con-
struction including overhead and underground projects.”
The Employer does not have a collective-bargaining
agreement with Laborers. However, Laborers has a col-
lective-bargaining agreement with the Ohio Contractors
Association (OCA), of which Anderzack-Pitzen Con-
struction, Inc. (Anderzack), a general contractor, is a
member. That agreement (heavy highway agreement),
effective May 1, 2007, to April 30, 2010, covers “High-
way Construction” and requires that “all subcontractors
shall be subjected to the terms and provisions of this
Agreement.”
Anderzack is the general contractor on a highway re-
construction project funded by the Ohio Department of
Transportation in Bucyrus, Ohio. On August 12, 2009,1
Anderzack awarded a subcontract to the Employer to
perform decorative street lighting and traffic signal in-
stallation work on this project. On about October 8, the
Employer commenced work on this project using a 3–4
person crew of employees represented by Electrical
Workers.
On October 29, Anderzack notified the Employer that
Laborers had filed a grievance against Anderzack, alleg-
ing that Anderzack’s subcontract with the Employer vio-
lated the subcontracting provision of the heavy highway
agreement.
The Employer’s district manager, Patrick McKeown,
testified that, in a telephone call later that day with La-
borers’ Business Manager Perry Johnson, Johnson stated
that Laborers-represented employees do all the traffic
signal, street lighting, and highway lighting work
throughout the state, except for the “hot hookups.”
McKeown testified that he then asked Johnson whether
the Employer had to use “your people,” and Johnson
replied “yes,” adding “[i]t’s their work.”2

1 Unless otherwise specified, all dates are in 2009.
2 Johnson testified that he told McKeown during this conversation
that Laborers has a collective-bargaining agreement with Anderzack,
but that he rejected a suggestion by McKeown that the Employer em-
ploy Laborers-represented employees on the project.
ELECTRICAL WORKERS LOCAL 71 (US UTILITY CONTRACTOR CO.) 345
In late November, Anderzack notified the Employer
that Laborers-represented employees were going to be
placed on the Bucyrus Project. Subsequently, on about
November 23, Anderzack placed one Laborers-
represented employee on the crew together with the Em-
ployer’s Electrical Workers-represented employees.
By letter dated November 27, Electrical Workers’
Business Manager Patrick Grice informed the Em-
ployer’s President Stan Chlebowski that, under the Em-
ployer’s collective-bargaining agreement with Electrical
Workers, the Employer was prohibited from using em-
ployees other than those represented by Electrical Work-
ers to perform work on the Bucyrus project. The letter
stated: “Be advised that should US Utilities continue to
violate and/or breech [sic] the [outside agreement];
Grievances will be filed against US Utilities Company.”
The letter further stated: “In addition, Picket Lines,
Strike activity and the filing of charges with the National
Labor Relations Board will be levied against US Utilities
Company.” Grice concluded by stating that Electrical
Workers “will do whatever is necessary to protect the
integrity of the [outside agreement] and protect IBEW
jobs.”
In a letter dated December 2, Anderzack’s General
Manager Pam Pitzen notified Chlebowski that the “work
required by your firm that is not directly related to elec-
trical hook up, wiring, etc. is being claimed by the La-
borers.” Pitzen added that Laborers demanded that two
Laborers-represented employees “perform the manual
labor (other than electrical) on this project.” Pitzen
stated that Anderzack would provide another Laborers-
represented employee to assist on the Bucyrus project
and that Anderzack would charge the Employer for all
hours worked by the Laborers-represented employees.
In December, the Employer utilized a four-employee
composite crew on the Bucyrus project, consisting of two
employees represented by Electrical Workers and two
employees represented by Laborers. The Laborers-
represented employees performed the nonelectrical work
on the project, which involved digging trenches, piecing
together conduit, forming concrete pads, and anchoring
bolts. Subsequently, Anderzack billed the Employer for
the hours worked by the Laborers-represented employ-
ees.
On December 31, Electrical Workers filed a grievance
against the Employer alleging, among other things, that
the Employer had failed to use Electrical Workers as the
exclusive source of referral of applicants for employment
on the project.
On January 4, 2010, Electrical Workers picketed the
Bucyrus project site. No work was performed on the
jobsite on that day and no further work was performed
that week.
B. Work in Dispute
The work in dispute involves trenching, laying of con-
duit, pulling of wiring, the installation of decorative
lighting, and the installation of traffic signals at an Ohio
Department of Transportation project located in Bucyrus,
Ohio, performed by US Utility Contractor Co., Inc.
C. Contentions of the Parties
Laborers argues that the notice of hearing should be
quashed, contending that it has not claimed the disputed
work. Relying on Laborers (Capitol Drilling Supplies),
318 NLRB 809 (1995) (union’s action through grievance
procedure to enforce claim against general contractor
does not constitute claim against subcontractor for work
in dispute), Laborers argues that it has pursued only a
contractual grievance against Anderzack for failing to
honor the subcontracting clause in the heavy highway
agreement. Laborers also contends that Electrical Work-
ers’ threat was a sham, and was contrived in order to
create a jurisdictional dispute and thereby obtain the
work assignment preferred by the Employer.3
The Employer and Electrical Workers oppose the mo-
tion to quash. They contend that there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated, as evidenced by Electrical Workers’ threat to
picket and its actual picketing of the jobsite. They fur-
ther contend that there are competing claims to the dis-
puted work, and therefore the motion to quash should be
denied. In particular, they contend that Laborers pressed
its claim for the work directly to the Employer when,
during the October 29 phone call with Employer District
Manager McKeown, Laborers Business Manager John-
son told McKeown that Laborers-represented employees
do all the lighting and traffic signal installation work all
over the state, and that the work in dispute is “their
work.” They further contend that Laborers’ claim for the
work is demonstrated by the fact that, for a brief period
in November and December, Laborers-represented em-
ployees performed the work in a composite crew with the
Employer’s Electrical Workers-represented employees.4

3 In its posthearing brief, Laborers did not set forth any contentions
regarding the merits of the dispute. Laborers did, however, introduce
some evidence relevant to the merits, and that evidence is considered
below.
4 The Employer and Electrical Workers also contend that Laborers
made a claim for the work in dispute when it requested that the Em-
ployer sign the heavy highway agreement to resolve a grievance filed
against another general contractor, Shelly Company, on a project in
Lima, Ohio. The Employer further contends that Laborers also claimed
the work when, in a meeting held to discuss the grievance concerning
the Lima project, the vice president of the Laborers International Un-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
On the merits, the Employer and Electrical Workers
assert that the work in dispute should be awarded to em-
ployees represented by Electrical Workers based on the
factors of collective-bargaining agreements, employer
preference and past practice, area and industry practice,
relative skills, and economy and efficiency of operations.
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, there must be
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. This standard requires finding that there is
reasonable cause to believe that: (1) there are competing
claims for the disputed work among rival groups of em-
ployees;5 (2) a party has used proscribed means to en-
force its claim to the work in dispute;6 and (3) the parties
have not agreed on a method for the voluntary adjust-
ment of the dispute.7 On this record, we find that this
standard has been met.
1. Competing claims for the work
We find that there are competing claims for the work
in dispute. Electrical Workers has at all times claimed
the work in dispute for the employees it represents, and
those employees have been performing the work. Fur-
ther, Electrical Workers Business Manager Grice’s No-
vember 17 letter to the Employer claimed the work in
dispute for employees represented by Electrical Workers.
Laborers contends, however, that it has not claimed the
work in dispute, but rather merely filed a grievance
against Anderzack for breach of the subcontracting
clause in the heavy highway agreement. See Capitol
Drilling, supra. We disagree. First, its claim is demon-
strated by the fact that employees it represents briefly
performed the work in a composite crew with employees
represented by Electrical Workers.8 Further, as stated
above, McKeown testified that, in his October 29 phone
conversation with Johnson, Johnson replied affirmatively
when asked whether the Employer was required to use

ion, Ralph Cole, told McKeown that “traffic signal work and street-
lighting work belongs to the Laborers’, with the exception . . . of any
electrical connections, hot connections.”
5 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001).
6 See, e.g., Electrical Workers Local 3 (Slattery Skanska, Inc.), 342
NLRB 173, 174 (2004).
7 Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137,
1138–1139 (2005).
8 See Operating Engineers Local 542 (Caldwell Tanks, Inc.), 338
NLRB 507, 509 (2002) (observing that the Board has long held that
employees’ performance of work is evidence of their claim to that
work, even absent an explicit claim); Longshoremen ILWU Local 14
(Sierra Pacific Industries), 314 NLRB 834, 836 (1994) (performance of
work by a group of employees is evidence of a claim for work by those
employees, even in the absence of an explicit claim).
“your people,” adding “[i]t’s their work.” Although La-
borers disputes the validity of this testimony, we find that
it is sufficient to establish reasonable cause to believe
that Laborers made a claim for the disputed work. See
J.P. Patti Co., 332 NLRB 830, 832 (2000).9 In view of
the evidence that Laborers performed some of the work
in dispute and made a claim directly to the Employer for
the work, we find the instant case distinguishable from
Capitol Drilling.
2. Use of proscribed means
We also find that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated. As set forth
above, Electrical Workers stated in its November 27 let-
ter to the Employer that if the Employer assigned the
work to employees other than those represented by Elec-
trical Workers, “Picket Lines, Strike activity and the fil-
ing of charges with the National Labor Relations Board
will be levied against [the Employer].” Additionally,
Electrical Workers picketed the jobsite in January 2010.
Laborers argues that Electrical Workers’ actions were
a sham in order to obtain the work assignment through
this 10(k) proceeding. Laborers does not, however, offer
any direct evidence demonstrating that Electrical Work-
ers did not intend its threat to be taken seriously. To the
contrary, Electrical Workers carried out its threat to
picket on January 4, 2010. See Operating Engineers Lo-
cal 150 (Royal Components, Inc.), 348 NLRB 1369,
1370 (2006) (picketing accompanied by claim for work
constitute reasonable cause to believe that a union used
proscribed means). We therefore find reasonable cause
to believe that Section 8(b)(4)(D) has been violated.
3. No voluntary method for adjustment of dispute
The parties have stipulated, and we find, that there is
no agreed-upon method for voluntary adjustment of the
dispute to which all parties are bound.
In view of the evidence above, we find reasonable
cause to believe that there are competing claims for the
work in dispute and that a violation of Section 8(b)(4)(D)
has occurred, and that no voluntary method exists for
adjustment of the dispute. We thus find that the dispute
is properly before the Board for determination, and ac-
cordingly deny Laborers’ motion to quash the notice of
hearing.

9 The Board need not rule on the credibility of testimony in order to
proceed to the determination of a 10(k) dispute because the Board need
only find reasonable cause to believe that the statute has been violated.
Electrical Workers Local 363 (U.S. Information Systems), 326 NLRB
1382, 1383 (1998).
We also find it unnecessary to address the Employer’s and Electrical
Workers’ contentions that Laborers made additional claims for the
work, as set forth in fn. 4, supra.
ELECTRICAL WORKERS LOCAL 71 (US UTILITY CONTRACTOR CO.) 347
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 (1961). The Board
has held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and ex-
perience, 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 in this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of Board certifications concern-
ing the employees involved in this dispute.
The parties stipulated that the Employer and Electrical
Workers are bound to the outside agreement, which cov-
ers the “installation and maintenance of highway and
street lighting, highway and street sign lighting, electric
message boards and traffic control systems, camera sys-
tems, traffic signal work, substation and line construc-
tion, including overhead and underground projects.”
In contrast, it is undisputed that the Employer does not
have a collective-bargaining agreement with Laborers.10
Accordingly, we find that the factor of collective-
bargaining agreements favors an award of the disputed
work to the employees represented by Electrical Work-
ers.
2. Employer preference and past practice
Employer District Manager McKeown testified that
the Employer prefers to have the disputed work per-
formed by Electrical Workers-represented employees.
At the hearing, McKeown and Electrical Workers
Business Manager Grice testified that the Employer has
historically assigned this type of work to its Electrical
Workers-represented employees. There is no evidence
that, other than during the brief period in November and
December, the Employer ever used Laborers-represented
employees to perform work of the kind in dispute. Ac-
cordingly, we find this factor favors an award of the dis-
puted work to employees represented by Electrical
Workers.

10 Although Laborers has a collective-bargaining agreement with
Anderzack, that agreement is not applicable because the company that
ultimately controls the job assignment is deemed to be the employer for
purposes of a 10(k) proceeding. Plasterers Local 502 (PBM Concrete),
328 NLRB 641, 644 (1999); Operating Engineers Local 150 (Austin
Co.), 296 NLRB 938, 940 (1989).
3. Area and industry practice
Grice testified that employees represented by Electri-
cal Workers have performed work of the kind in dispute
in Crawford County, Ohio, where Bucyrus is located,
and the surrounding areas for at least 30 years. Grice
also testified that, throughout Ohio, other electrical con-
tractors have assigned traffic signal and streetscape light-
ing installation work to employees represented by Elec-
trical Workers. The Employer’s foreman, Aaron Grand,
testified that he has worked on hundreds of signal instal-
lation projects and street lighting projects as an Electrical
Workers-represented employee for about 20 years, and
that no Laborers-represented employees were involved in
those projects.
Laborers also presented testimony relevant to this fac-
tor. The vice president of the Laborers’ International
Union, Ralph Cole, testified that employees represented
by his local unions perform highway lighting and traffic
signal installation work throughout Ohio, including the
wiring except when it is energized.11 In addition, John-
son testified that Laborers-represented employees have
performed highway lighting and traffic signal installation
“for as long as [he] can remember” within his jurisdic-
tion in the counties of Ashland, Crawford, Knox, Mor-
row, and Richland, Ohio. Johnson stated that the con-
tractors who use employees represented by Laborers to
perform this type of work include “Lake Erie, M.P.
Dory, Sandusky Bay, Complete General, Trafftech, Pe-
terson, Bansal, Cornerstone, and Miller Cable.” In view
of this evidence, we find that this factor does not favor an
award of the work in dispute to either group of employ-
ees.
4. Relative skills
Electrical Workers presented testimony that the em-
ployees it represents are trained, and have the requisite
experience and skills, to perform the disputed work.
Electrical Workers Business Manager Grice testified that
in order to become a journeyman lineman, an employee
represented by Electrical Workers must complete a 7000-
hour apprenticeship program consisting of both on-the-
job and classroom training. This program provides train-
ing in electrical theory, the requirements of the National
Electrical Code, and traffic signal installation. Employer
foreman Grand similarly testified that employees repre-
sented by Electrical Workers possess the skills required

11 At the hearing, Laborers submitted two documents in support of
its contention that Laborers-represented employees perform highway
and signal lighting installations: a 2006 arbitration decision requiring
an employer, Trafftech, Inc., to assign the installation work to employ-
ees represented by Laborers Local 860; and the Order of Dismissal
from the United States District Court, Northern District of Ohio con-
cerning said arbitration award.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
to perform the work in dispute. Employer District Man-
ager McKeown testified that the Electrical Workers-
represented employees who perform the work in dispute
for the Employer are certified by the International Mu-
nicipal Signal Association (IMSA). Further, McKeown
testified that Laborers officials Johnson and Cole in-
formed him that Laborers-represented employees do not
perform work of the kind in dispute when the wiring be-
comes live.
Cole testified that employees represented by Laborers
undergo a 4000-hour apprenticeship program for the
classification of general laborer. Although Cole did not
testify in detail about the training program, he stated that
it has only been in operation for about 3 years, and that it
is not specific to electrical work.
We find that this factor favors an award of the work in
dispute to employees represented by Electrical Workers.
5. Economy and efficiency of operations
Employer District Manager McKeown and Employer
Foreman Grand both testified that it is more efficient for
the Employer to perform the work in dispute using Elec-
trical Workers-represented employees. They explained
that these employees are able to perform the work inter-
changeably and in a cohesive fashion. Grand testified,
for example, that a ground man, journeyman lineman, or
foreman on a crew of employees represented by Electri-
cal Workers can perform the wiring work on the installa-
tion projects.
McKeown and Grand also both testified that a com-
posite crew of employees represented by Electrical
Workers and Laborers would be less productive, because
the latter would have to be taught how to perform some
of the tasks involved in the performance of this work.
Foreman Grand specifically testified that the two Labor-
ers-represented employees who briefly performed the
work in dispute were not familiar with the work, and thus
Grand “basically had to walk them through it.”
Finally, as noted above, Laborers-represented employ-
ees cannot perform any of the tasks involving live con-
nections, an important component to the installation
work. See generally, Electrical Workers Local 126
(Henkels & McCoy), 338 NLRB 1, 4 (2002) (finding it
more economical and efficient to award work to employ-
ees who could perform all, rather than only some, of the
job functions needed to complete the work in dispute).
Conclusion
After considering all the relevant factors, we conclude
that the employees represented by Electrical Workers are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of collective-bargaining
agreements, employer preference and past practice, rela-
tive skills, and economy and efficiency of operations. In
making this determination, we are awarding the work to
employees represented by Electrical Workers, not to that
Union or its members.
F. Scope of the Award
The Employer requests a broad, statewide award cov-
ering the work in dispute. The Board customarily does
not grant a broad areawide award in cases where the
charged party represents the employees to whom the
work is awarded and to whom the employer contem-
plates continuing to assign the work. See, e.g., Laborers
Local 243 (A. Amorello & Sons), 314 NLRB 501, 503
(1994). Accordingly, we shall limit the present determi-
nation to the particular controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of US Utility Contractor Company, Inc.,
represented by International Brotherhood of Electrical
Workers, Local Union No. 71, are entitled to perform the
trenching, laying of conduit, pulling of wiring, the instal-
lation of decorative lighting, and the installation of traffic
signals at an Ohio Department of Transportation project
located in Bucyrus, Ohio, performed by US Utility Con-
tractor Company, Inc.