Electrical Workers Local 126 (Henkels & McCoy)

National Labor Relations Board - Board Decisions

Sep 16, 2002

338 N.L.R.B. 1 (N.L.R.B. 2002)

ELECTRICAL WORKERS LOCAL 126 (HENKELS & MCCOY) 1
International Brotherhood of Electrical Workers, Lo-
cal 126 and Henkels & McCoy, Inc. Case 4–CD–
1062
September 16, 2002
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
The charge in this proceeding was filed on May 16,
2001,1 by Henkels & McCoy, Inc. (the Employer), alleg-
ing that the Respondent, International Brotherhood of
Electrical Workers, Local 126 (IBEW Local 126) vio-
lated Section 8(b)(4)(D) of the National Labor Relations
Act by engaging in proscribed activity with an object of
forcing the Employer to assign certain work to employ-
ees it represents rather than to employees represented by
the Laborers’ International Union of North America,
Local 413 (Laborers Local 413) and the International
Union of Operating Engineers, Local 542 (IUOE Local
542). The hearing was held on August 15 and 16, 2001,
before Hearing Officer Stan P. Simpson. The Employer,
Laborers Local 413 and IUOE Local 542 have filed
posthearing briefs.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire record,
the Board makes the following findings.
I. JURISDICTION
The Employer, a Pennsylvania corporation, with its
principal place of business in Blue Bell, Pennsylvania, is
engaged in the performance of construction services
throughout the United States. It annually provides ser-
vices valued in excess of $50,000 directly to customers
located outside Pennsylvania. The parties stipulate, and
we find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
We further find, based on the stipulation of the parties,
that IBEW Local 126, Laborers Local 413, and IUOE
Local 542 are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In early March, the Employer began performance of a
new contract that it had been awarded by Columbia
Transcom (Columbia Project). The contract required the
Employer to participate in the construction of a commu-
nications network running from the Maryland—
Pennsylvania border past Exton, Pennsylvania. Specifi-

1 All dates are 2001 unless otherwise noted.
cally, the Employer’s contract called for it to install high-
density polyethylene pipe through which it inserted fiber
optic cable.
The Employer and the IBEW are parties to a National
Teledata Agreement. It applies to all work performed by
the Employer involving construction, installation, main-
tenance, and removal of telecommunications systems or
“teledata” work. The scope section in this agreement
covers fiber optic installation. Respondent IBEW Local
126 is covered by the National Teledata agreement and
has had a long history of representing employees who
perform telephone and telecommunications work for the
Employer. The Employer assigned the work to its em-
ployees who are represented by IBEW Local 126.
Laborers Local 413 has a collective-bargaining agree-
ment with the Employer. The record evidence shows that
Laborers Local 413 learned of the work being performed
by the Employer on the Columbia Project, and in early
February brought up the work assignment with the Em-
ployer during a negotiation meeting with representatives
of the Laborers District Council. Laborers Local 413’s
business manager, Wade Stevens, informed the Em-
ployer’s director of labor relations, Steven Friend, that the
work being performed was Laborers Local 413’s work.
IUOE Local 542 also has a collective-bargaining
agreement with the Employer. On March 7, a meeting
was held between the Employer and representatives from
Laborers Local 413 and IUOE Local 542 to discuss the
work being done on the Columbia Project. During that
meeting, both Unions informed the Employer that the
work belonged to them. The Employer responded that
the work was IBEW work and that there would be no
reassignment. Subsequently, on May 9, the Employer
received copies of notices of demands for arbitration that
were filed by the two Unions with the American Arbitra-
tion Association, contending that the Employer had vio-
lated their respective collective-bargaining agreements
by assigning the work to IBEW Local 126.
According to the testimony of the Employer’s Labor
Relations Director Friend, he contacted IBEW Local 126
President Doug Rapp and informed him of the actions of
Laborers Local 413 and IUOE Local 542. Friend told
Rapp that some or all of the work possibly could go to
those locals as a result of the pending arbitration. Rapp’s
response included the statement that should a reassign-
ment occur, “a job action would be taken.”
On May 15, the Employer received a letter from IBEW
Local 126 Business Manager Thomas Leach, which ad-
vised that the “Teledata work ha[d] historically been the
work of Local Union #126. If not done by Local Union
#126, a job action will occur.” Later that same day,
Leach, in a telephone call with Friend, repeated that some
338 NLRB No. 1
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
kind of “job action” would be taken to prevent the reas-
signment of the work from IBEW Local 126. By letter
dated May 18, Charles Joyce, IBEW Local 126’s counsel,
advised the NLRB Regional Director for Region 4 that
the reference to “some kind of job action” in IBEW Local
126’s letter of May 15, “[was] not to be construed as a
threat by Local 126 to engage in picketing or any other
activity prohibited by the Act. . . . (and that) the Union is
confident that it does not need to engage in any extralegal
activity to retain its claim to such work. Instead, Local
126 will exercise all legal remedies available to it, both
under its collective-bargaining agreement with Henkels &
McCoy and under the procedures available under the Act,
to stake its jurisdictional claim in this case.”
At the hearing, Laborers Local 413 and IUOE Local
542 contended: that the notice of hearing should be
quashed because there was no jurisdictional dispute for
the Board to resolve, based on the lack of evidence of
any unlawful coercion on the part of the unions; that
IBEW Local 126’s statements that it would take “some
job action” was not a threat; and that there had not been
any picketing by any of the unions.
B. The Work in Dispute
The Board’s notice of hearing in this proceeding stated
that the dispute concerns the assignment of the following
work:

The installation by Henkels & McCoy, Inc. of teledata
facilities including fiber optic cable equipment on the
Columbia Gas Pipeline right-of-way in Chester
County, Pennsylvania.

C. Contentions of the Parties
The Employer contends that the threat by IBEW Local
126 to “take some job action” against the Employer over
the disputed work is sufficient basis for the Board to
have reasonable cause to believe that Section 8(b)(4) of
the Act has been violated. The Employer argues that
IBEW Local 126 has not withdrawn its threat, nor has it
disclaimed its interest in the disputed work but rather has
consistently maintained its desire to continue performing
the work in dispute. The Employer asserts that the de-
mands for arbitration filed by Laborers Local 413 and
IUOE Local 542 constitute claims for the work in dis-
pute. It observed that the Union Parties stipulated during
the hearing that they each claimed the work in dispute.
Based on these facts, the Employer contends that there
are competing claims for the work in issue, and that this
proceeding is properly before the Board for determination
pursuant to Section 10(k) of the Act. The Employer as-
serts that the work in dispute should be awarded to its
employees represented by IBEW Local 126, based on its
past practice of assigning the teledata fiber optic work to
them.
Laborers Local 413 and IUOE Local 542 contend that
the Board should decline jurisdiction in this proceeding
because there is no reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. They assert that there
has been no attempt by any of the Unions involved to
picket or engage in any conduct proscribed under the
Act. They also argue that their filing of grievances and
seeking arbitration was not coercive, but merely the ex-
ercising of their rights to seek redress by enforcement of
their contracts. They also contend that a voluntary
method of adjustment exists to resolve the dispute be-
cause each Union’s collective-bargaining agreement con-
tains a grievance-arbitration clause and that, if IBEW
Local 126 would agree to file a grievance, the cases
could be consolidated for arbitration. In the alternative,
Laborers Local 413 and IUOE Local 542 assert that if the
Board does not quash the notice of hearing, the work in
dispute should be awarded to employees represented by
them because their collective-bargaining agreements
mandate the assignment.
D. Applicability of the Statute
Before the Board may proceed with determination of a
dispute pursuant to Section 10(k) of the Act, it must be
satisfied that: (1) there are competing claims for the work;
(2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated; and (3) the parties have not
agreed on a method for the voluntary adjustment of the
dispute.2
As we discuss below, the following evidence supports
our determination that the above requirements of Section
10(k) have been met and that this matter is properly be-
fore the Board.
First, we find that there are competing claims for the
disputed work. During the hearing, IBEW Local 126,
Laborers Local 413, and IUOE Local 542 jointly stipu-
lated to their claims for the work as follows:

“Local 126, Local 413 and Local 542, all claim the work in
dispute that is defined in the Notice of Hearing.”

Further, we find no evidence that IBEW Local 126
ever disclaimed its interest in retaining the work,3 and the

2 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001); Teamsters Local 259 (Globe Newspapers Co.), 327 NLRB
619, 622 (1999); Laborers Local 113 (Super Excavators), 327 NLRB
113, 114 (1998).
3 IBEW Local 126 counsel’s May 18 letter is not inconsistent with
this finding, as the letter made continued reference to that Union’s
“jurisdictional claim in this case.”
ELECTRICAL WORKERS LOCAL 126 (HENKELS & MCCOY) 3
employees represented by it continue to perform the dis-
puted work, which constitutes a “claim.”4
Second, there is also reasonable cause to believe that
Section 8(b)(4)(D) has been violated. The facts above
demonstrate that IBEW Local 126 threatened the Em-
ployer several times by stating that “a job action would
occur” if the Employer reassigned the disputed work to
employees represented by Laborers Local 413 and IUOE
Local 542. Further, these threats were conveyed both in a
letter from IBEW Local 126 Business Manager Leach to
the Employer, and orally by Leach and IBEW Local 126
President Rapp to the Labor Relations Director Friend.
The Board has consistently found that threats to take a
“job action” provide a reasonable cause to believe that
Section 8(b)(4)(D) has been violated. Laborers Local
435 (Spiniello Construction Co.), 323 NLRB 994, 995
(1997); Iron Workers Local 433 (Crescent Corp.), 277
NLRB 670, 673 (1985); Paper Handlers Local 1 (Ameri-
can Bank Note Co.), 255 NLRB 261, 262 (1981).
Contrary to the contentions of Laborers 413 and IUOE
Local 542, we do not view the letter sent by IBEW Local
126’s counsel to the Regional Director for Region 4 to
have disavowed the local’s threats to engage in some
type of proscribed conduct in order to retain the work in
dispute. In that letter, counsel wrote that IBEW Local
Business Manager Leach’s statements concerning a “job
action” contained in his May 15 letter to the Employer
“[was] not to be construed as a threat,” but the letter
made no reference to the oral statements made by both
Leach and President Rapp regarding a job action. At
best, counsel’s letter is merely an advocate’s attempt to
address the legal issue before this Board as to whether
statements concerning a “job action” provide a reason-
able cause to believe that Section 8(b)(4)(D) has been
violated. In this light, IBEW Local 126 counsel’s state-
ment in the letter that “the Union is confident that it does
not need to engage in any extralegal activity” bears more
heavily on whether the threat of a job action will need to
be exercised, not that this prospect is being disavowed or
repudiated. We find no merit in this contention that no
reasonable cause exists to believe that Section 8(b)(4)
has been violated.
Finally, we find that the parties have not agreed on a
method for the voluntary adjustment of the dispute. La-
borers Local 413 and IUOE Local 542 claim that the ap-
plicable grievance-arbitration clauses provide for a volun-
tary method for resolving this dispute, relying on the fact
that each union has a grievance-arbitration clause in its

4 See Operating Engineers Local 926 (Georgia World Congress
Center), 254 NLRB 994, 996 (1981) (employees’ performance of the
work in dispute, even without an express claim to the work, was evi-
dence of a claim).
individual contract with the Employer. However, none of
these procedures bind all three unions and the Employer
involved in this proceeding to a single, mutually agreed-
upon procedure for the voluntary resolution of the work
dispute in this case. Therefore, we find that there is no
method for the voluntary adjustment of the dispute to
which all parties have agreed. See, e.g., Carpenters Local
210 (A. F. Underhill, Inc.), 323 NLRB 521 (1997).
Accordingly, we conclude that the 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 IBEW Local 1212
(Columbia 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 experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743 (J. A.
Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certifications con-
cerning the employees involved in this dispute.
As stated above, the Employer and IBEW Local 126
are parties to a collective-bargaining agreement effective
from March 1, 2000, to April 30, 2004. In that agreement,
the section entitled “Scope” provides, inter alia, that it
covers:

low voltage construction, installation, maintenance and
removal of teledata facilities (voice, data and video) in-
cluding outside plant, telephone and data inside wire in-
terconnect, terminal equipment, central offices, PABX,
fiber optic cable and equipment, railroad communica-
tions, micro waves, V-SAT, by-pass, CATV, WAN
(wide area networks), LAN (local area networks), and
ISDN (integrated systems digital network).

Based on this clear and specific language, we find that
the work in dispute is covered by the Employer’s collec-
tive-bargaining agreement with IBEW Local 126. Al-
though the Employer has collective-bargaining agree-
ments with Laborers Locals 413 and IUOE Local 542,
neither of their agreements specifically covers all of the
work in dispute.5 The factor of collective-bargaining
5 Laborers Local 413’s collective-bargaining agreement states that
employees represented by it are to be used by the Employer, when,
inter alia, “horizontal directional drilling, underground electric and
telephone and gas and all excavating and backfilling” is being per-
formed. In this same vein, IUOE Local 542’s collective-bargaining
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
agreements accordingly favors an award of the disputed
work to employees represented by IBEW Local 126.
2. Area and industry practice
The evidence shows that several contractors in the
Philadelphia metropolitan area have used IUOE-
represented employees to operate equipment as part of the
installation of fiber optic cable networks. The record does
not include any evidence regarding whether employees
represented by the Laborers have performed the work in
dispute. Finally, as detailed below, the Employer’s em-
ployees represented by the Respondent have been as-
signed this work on a number of projects in the Philadel-
phia metropolitan area. There is no evidence regarding
general industry practice. As a result, we find that this
factor does not favor an award of the work in dispute to
the employees represented by any of the unions.
3. Employer preference and past practice
The Employer assigned the disputed work to employ-
ees represented by IBEW Local 126 and prefers that the
work in dispute continue to be performed by employees
represented by IBEW Local 126.
The Employer presented evidence showing that em-
ployees represented by IBEW Local 126 have performed
the disputed work for the Employer for many years. The
Employer also provided evidence showing that the Em-
ployer has built communication networks for AT&T,
MCI, WorldCom, Quest Communications, and Columbia
in Pennsylvania and elsewhere and that its employees
represented by IBEW Local 126 have performed all of
the teledata communications work in Pennsylvania. Ac-
cordingly, we find that the factor of Employer preference
and past practice favors an award of the work in dispute
to employees represented by IBEW Local 126.
4. Relative skills and training
The evidence is clear that the work in dispute is com-
plex and that the employees represented by IBEW Local
126 have received particularized training to perform their
work tasks related to the installation of a telecommunica-
tions network that includes the placing and splicing of
fiber optic cable. Although Laborers Local 413 and
IUOE Local 542 contend that their members can perform

agreement refers to, inter alia, “all heavy construction including cross
country transmission lines and underground conduit stations and all
excavating and backfilling.”
the work in dispute and operate the necessary equipment,
there is no probative evidence showing that their training
is specifically related to the installation of a telecommu-
nications network. Therefore, we find that this factor
favors an award of the disputed work to employees rep-
resented by IBEW Local 126.
5. Economy and efficiency of operations
The evidence establishes that the Employer’s own em-
ployees who are represented by IBEW Local 126 have
been specifically trained to use all of the necessary
equipment and perform all of the necessary tasks associ-
ated with the installation of a telecommunications net-
work and are, therefore, familiar with the work in dis-
pute. Laborers Local 413 and IUOE Local 542 are claim-
ing discrete parts of the work in dispute. However, there
is no evidence that assignment of parts of the work in
dispute to employees represented by Laborers Local 413
and IUOE Local 542 would be as economical and effi-
cient as having the Employer’s own employees repre-
sented by IBEW Local 126 perform all of the job func-
tions necessary to complete the work in dispute. Accord-
ingly, this factor favors an award of the disputed work to
employees represented by IBEW Local 126.
Conclusion
After considering all the relevant factors, we conclude
that employees represented by IBEW Local 126 are enti-
tled to perform the work in dispute. We reach this con-
clusion relying on the factors of collective-bargaining
agreements, employer preference and past practice, rela-
tive skills and training, and economy and efficiency of
operations.
In making this determination, we are awarding the
work to employees represented by IBEW Local 126, not
to that Union or its members. The determination is lim-
ited 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 Henkels & McCoy represented by Local
126 International Brotherhood of Electrical Workers are
entitled to perform the installation of teledata facilities
including fiber optic equipment on the Columbia Gas
Pipeline right-of-way in Chester County, Pennsylvania.