Electrical Workers Local 47 (Pouk & Steinle, Inc.)

National Labor Relations Board - Board Decisions

Mar 19, 2009

353 N.L.R.B. 1074 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 113
1074
International Brotherhood of Electrical Workers,
Local 47 and International Brotherhood of Elec-
trical Workers, Local 440 and Pouk & Steinle,
Inc. and Southern California District Council Of
Laborers, Local 1184. Cases 21–CD–665 and 21–
CD–666
March 19, 2009
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Pouk & Steinle, Inc. (the Employer) filed charges on
June 26 and 27, 2008,1 alleging that International Broth-
erhood of Electrical Workers, Locals 47 and 440 (collec-
tively, IBEW Locals) 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 IBEW Locals rather than to employ-
ees represented by Southern California District Council
of Laborers, Local 1184 (Laborers). The hearing was
held on October 14, before Hearing Officer Patrick J.
Cullen. Thereafter, the Employer and IBEW Locals each
filed a posthearing brief in support of their positions, and
Laborers filed a brief in support of its motion to quash
the notice of hearing.2
The National Labor Relations Board affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error. On the entire record, we make the following find-
ings.3
I. JURISDICTION
The parties stipulated that the Employer is a California
corporation with a principal place of business in River-
side, California, and a wholly-owned subsidiary of Con-
struction Services, Inc. located in Bismark, North Da-

1 All dates hereafter are 2008, unless otherwise indicated.
2 On November 6, Laborers filed a Motion to Strike Portions of the
Charging Party’s Brief. On November 11, the Employer filed an Op-
position to Laborers’ Motion to Strike. The Motion to Strike requests
that, pursuant to Sec. 102.24 of the Board’s Rules and Regulations, the
Employer’s introductory paragraph and some arguments in its post-
hearing brief be struck because they are premised on facts and assump-
tions not in the record. We deny the motion as moot, because our deci-
sion here does not rely on those portions of the Employer’s post-
hearing brief.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Section 3(b) of the Act.
kota. They also stipulated that, during the past calendar
year, the Employer purchased and received goods at its
facility in Riverside, California, valued in excess of
$50,000 directly from points located outside the State of
California. Accordingly, the Employer is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. Finally, the parties stipulated, and we find, that
IBEW Locals and Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a subcontractor engaged in the elec-
trical contracting business. By virtue of its membership
in the National Electrical Contactors’ Association, the
Employer is signatory to a collective-bargaining agree-
ment with IBEW Local 474 and two collective-
bargaining agreements with IBEW Local 440.5 These
collective-bargaining agreements require the Employer to
employ employees represented by IBEW Locals to per-
form electrical work, and the Employer has a long-
standing practice of doing so.
The Employer has never had a direct bargaining rela-
tionship with Laborers. Effective September 11, 2006,
the Employer entered into a subcontracting agreement
with Sully-Miller Contracting Company (Sully-Miller
subcontract), covering all applicable electrical work per-
formed on an underground substructure for high voltage
distribution for street lighting and traffic signals in Riv-
erside, California (the Van Buren Project).6 The Sully-
Miller subcontract incorporates by reference the 2006–
2009 Laborers’ master labor agreement (LMLA). The
LMLA contains a jurisdictional clause that includes work
on “electrical transmission line and conduit projects” and
a subcontracting clause stating that: “Subcontractor
agrees that it is bound to and shall comply with all of the
terms and conditions of the [Laborers’] Master Labor
Agreement . . . including wages, trust fund contributions,
working rules, the grievance/arbitration procedure . . . on
all covered work performed in the geographic area of the
[Laborers’] Master Labor Agreement.” The Sully-Miller
subcontract additionally states that “Subcontractor ac-
knowledges that [Laborers] are the intended third party
beneficiaries of the contractual provision and may en-

4 The agreement’s scope of work includes “all work necessary for
the installment of all types of underground ducts, or raceways used as
enclosures for electrical conductors.”
5 The agreements’ scope of work “is intended to cover electrical
work on public streets and freeways, above or below the ground.” The
respective work assigned to employees represented by IBEW Local 47
and IBEW Local 440 does not overlap.
6 The Scully-Miller subcontract itemizes the work covered under the
agreement (Items 023–105), including the disputed work.
ELECTRICAL WORKERS LOCAL 47 (POUK & STEINLE, INC.) 1075
force this provision directly against the Subcontractor.”
The subcontract did not include a copy of the LMLA or
its jurisdiction clause. After executing the subcontract,
the Employer assigned the work to employees repre-
sented by IBEW Locals.
IBEW Local 47 Business Manager and Financial Sec-
retary Patrick Lavin testified that, prior to the Em-
ployer’s assignment of the work to employees repre-
sented by IBEW Locals, Laborers Business Manager
John Smith told him that all work relating to “digging
holes in the ground” belonged to employees represented
by Laborers.7
On March 25, after employees represented by IBEW
Locals had nearly completed work on the Van Buren
Project, the Construction Laborers Trust Fund for South-
ern California Administrative Company, LLC (Laborers’
Trust) filed suit against the Employer in Federal court
seeking fringe benefit contributions for hours worked by
the Employer’s employees on the Van Buren Project,
plus interest, liquidated damages, and audit costs. John
Miller, the management-side cocounsel of the Laborers’
Trust, testified that the decision to file the lawsuit against
the Employer was made by the Laborers’ Trust Delin-
quency Committee, of which Laborers’ representatives
Smith, Mike Quevedo, and Sergio Rascon are members.
Miller added that Laborers and the Laborers’ Trust share
the same counsel, and that it would not have pursued the
work if it was not covered by the Laborers’ collective-
bargaining agreements.
Shortly after the suit was filed, Smith requested a
meeting with Employer President Bob Briscoe to request
that the Employer become a signatory with Laborers.
Briscoe testified that Smith “wanted to impress upon” the
Employer that the Van Buren Project was “Laborers’
work” and “not IBEW’s work,” and mentioned a couple
of times that “he was going to get us.” Smith further told
Briscoe that, if the Employer were to become a Laborers’
signatory, Laborers could make the Laborers’ Trust law-
suit “go away.”
The Employer in turn notified IBEW Locals officials,
and both locals responded by letters, dated June 6 and 20,
respectively, demanding the work on the Van Buren Pro-
ject and threatening to “take economic action” to ensure
that the work remained assigned to employees repre-
sented by IBEW Locals. On June 26 and 27, the Em-
ployer filed the instant charges against IBEW Locals,
alleging violations of Section 8(b)(4)(D).
All work on the Van Buren Project was completed by
employees represented by IBEW Locals in August.

7 Laborers Business Manager John Smith did not testify at the hear-
ing.
Thereafter, on September 23, Laborers Representative
Quevedo informed the Employer by letter that Laborers
“have not claimed and are not currently seeking or oth-
erwise claiming . . . any Project work at the [Van Buren]
Project.”
B. Work in Dispute
The work in dispute is all of the Employer’s work on
the Van Buren Project.8
C. Contentions of the Parties
Laborers moves to quash the notice of hearing on the
grounds that it has never sought the assignment of Van
Buren Project work to employees it represents.9 In sup-
port, Laborers contends that, contrary to Briscoe’s testi-
mony, Smith never demanded the work on behalf of La-
borers and Laborers had disclaimed interest in the work.
Further, Laborers argues that the Laborers’ Trust lawsuit
was neither filed nor prosecuted by Laborers; rather, the
Laborers’ Trust brought the lawsuit in its capacity as a
fiduciary of the Laborers’ Health and Welfare Trust
Fund. Laborers also contends that the Laborers’ Trust
lawsuit does not seek the assignment of the work, but
rather demands delinquent contributions.
IBEW Locals and the Employer respond that the total-
ity of the circumstances establishes that Laborers de-
manded the work in dispute. IBEW Local 47 contends
that the filing of the Laborers’ Trusts’ lawsuit, coupled
with Smith’s comment that Laborers could make the
lawsuit “go away” if the Employer signed an agreement
with Laborers, constitutes a demand for the work. Not-
ing that Laborers and the Laborers’ Trust were repre-
sented by the same counsel, the Employer argues that
they coordinated their efforts, and that the Laborers’
Trust would not have pursued the lawsuit if Laborers had
disclaimed the work. Further, the Employer contends
that Laborers’ purported disclaimer of the work is disin-
genuous because it came after the project was completed,
and in any event was not clear, unequivocal, and unquali-
fied because it was signed by the business manager of
Laborers’ district council, not by an official of Laborers.

8 Testimony at the hearing clarified that this work involved all work
on the underground conduit for underground street lighting and traffic
signals at the Van Buren Project.
9 Laborers further moves to quash on the grounds that work on the
Van Buren Project has been completed and that disputes over the work
are unlikely to recur. We find this contention unavailing. Thus, “the
mere fact that disputed work has been completed does not render a
jurisdictional dispute moot where nothing indicates that similar disputes
are unlikely to recur.” See Millwright Local 1906 (Chicago Steel), 310
NLRB 646, 648 fn. 8 (1993), citing Operating Engineers Local 150
(Martin Cement), 284 NLRB 858, 860 fn. 4 (1987). See also Iron
Workers California District Council (Madison Industries), 307 NLRB
405, 407 fn. 5 (1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1076
Finally, the Employer contends that the disputed work
should be awarded to employees represented by IBEW
Locals based on the factors of collective-bargaining
agreements, employer preference and past practice, and
relative skills. IBEW Locals each contend that the dis-
puted work should be awarded to employees they repre-
sent based on the factors of collective-bargaining agree-
ments, employer preference and past practice, relative
skills, and area and industry practice. IBEW Local 47
additionally contends that the factor of economy and
efficiency favors an award of the disputed work to em-
ployees it represents.
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;10 (2) a party has used proscribed means to en-
force its claim to the work in dispute;11 and (3) the par-
ties have not agreed on a method for the voluntary ad-
justment of the dispute.12 On this record, we find that
this standard has been met.
1. Competing claims for work
It is undisputed that the IBEW Locals claimed the
work in dispute for the employees they represent, and
these employees performed the work.
Laborers asserts that it did not claim the work in dis-
pute. Rather, it contends that the Laborers’ Trust filed
suit only to demand delinquent contributions and that
Laborers had, in fact, disclaimed the work. Laborers,
therefore, urges the Board to grant its motion to quash.
Contrary to Laborers’ contention, there is evidence
that Laborers, through Smith, demanded the work in dis-
pute. Thus, Lavin testified that Smith told him that any
underground work belonged to Laborers. Further,
Briscoe testified that Smith told him that work such as
that on the Van Buren Project belonged to employees
represented by Laborers and not to employees repre-
sented by IBEW Locals, and warned him that “he was
going to get us.”13

10 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001).
11 See, e.g., Electrical Workers, Local 3 (Slattery Skanska, Inc.), 342
NLRB 173, 174 (2004).
12 Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137,
1139 (2005).
13 Given the specific facts of this case, Member Schaumber would
also rely upon the Laborers’ Trust lawsuit as evidence establishing that
Laborers demanded the work in dispute. In particular, he notes the
timing of the suit, Smith’s statement that the lawsuit would “go away”
Next, we find Laborers’ purported disclaimer of inter-
est in the work is ineffective. The disclaimer was not
made until September, 1 month after the work was com-
pleted and shortly before commencement of the hearing
in this matter. “Although it is well settled that an effec-
tive renunciation of work in dispute resolves a jurisdic-
tional dispute, the Board will refuse to give effect to
‘hollow disclaimers’ interposed for the purpose of avoid-
ing an authoritative decision on the merits.” Laborers
Local 81 (Kenny Construction Co.), 338 NLRB 977, 978
(2003) (footnotes omitted) (disclaimer of future work
offered at the start of the hearing when 90 percent of
disputed work was complete found ineffective), quoting
Mine Workers (Con-Serv, Inc.), 299 NLRB 865, 868
(1990).
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 described
above, in their letters to the Employer dated June 6 and
20, respectively, IBEW Locals each threatened to “take
economic action” to ensure that the work remained as-
signed to employees it represents.
3. No voluntary method for adjustment of dispute
We further find that there is no agreed upon method
for voluntary adjustment of the dispute. The Employer
and IBEW Locals so stipulated at the hearing, and La-
borers, while neither admitting nor denying the same,
provided no argument or evidence to the contrary.
Based on the foregoing, we find that there are compet-
ing claims for the disputed work, that there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated, and that there is no agreed upon method for volun-
tary adjustment of the dispute. We accordingly find that
the dispute is properly before the Board for determina-
tion and deny Laborers’ motion to quash the notice of the
hearing.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors.14 The Board has held that its determination in a

if the Employer became a signatory to a Laborers’ contract, and the fact
that the decision to file the lawsuit was made by the trust’s Delinquency
Committee, of which Laborers representatives Smith, Quevedo, and
Rascon are members. In light of the other evidence establishing that
Laborers claimed the work in dispute, Chairman Liebman finds it un-
necessary to address the issue of whether the Laborers’ Trust lawsuit
would support such a finding. See generally Laborers (Eshbach Bros.,
LP), 344 NLRB 201, 202 fn. 4 (2005) (personal statement of then-
Member Liebman discussing cases in which Board has relied upon
contract-based legal claims to find that union claimed work in dispute).
14 NLRB v. Electrical Workers Local 1212 (Columbia Broadcasting),
364 U.S. 573, 577 (1961).
ELECTRICAL WORKERS LOCAL 47 (POUK & STEINLE, INC.) 1077
jurisdictional dispute is an act of judgment based on
common sense and experience, reached by balancing the
factors involved in a particular case.15
Based on the following factors, which we find are
relevant to determining this dispute,16 we conclude that
the Employer’s employees represented by IBEW Locals
are entitled to perform the work in dispute.
1. Certifications and collective-bargaining agreements
The parties stipulated that there are no Board certifica-
tions concerning the employees involved in this dispute.
The evidence shows that the Employer has two collec-
tive-bargaining agreements with IBEW Local 47, and
one with IBEW Local 440. It is undisputed that the
Scope of Work sections in these agreements covers the
disputed work. The Employer is also signatory to the
Scully-Miller subcontract agreement, which incorporates
the LMLA by reference. There is no dispute that the
Scully-Miller subcontract, through its itemized scope of
work, covers the disputed work. Accordingly, we find
that the factor of collective-bargaining agreements does
not favor awarding the disputed work to any of the
groups of employees.
2. Employer preference and past practice
Employer President Bob Briscoe testified that the Em-
ployer prefers to assign the disputed work to employees
represented by IBEW Locals. Briscoe also testified that
the Employer had a past practice of hiring employees
represented by IBEW Locals to perform work of the kind
in dispute. Accordingly, we find that the factor of Em-
ployer preference and past practice favors an award of
the work in dispute to employees represented by IBEW
Locals.
3. Area and industry practice
Local 47 Business Manager and Financial Secretary
Patrick Lavin and Local 440 Business Manager Robert
Frost each testified that the Employer and other contrac-
tors perform work similar to the kind in dispute using
employees represented by IBEW Locals, and that em-
ployees represented by Laborers have not historically
performed the disputed work. Laborers presented no

15 Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB
1402, 1410–1411 (1962).
16 Laborers presented no evidence and took no position on these fac-
tors.
evidence that its employees have performed the disputed
work. Accordingly, we find that the factor of area and
industry practice favors an award of the work in dispute
to employees represented by IBEW Locals.
4. Relative skills
Lavin testified that employees represented by IBEW
Locals are certified to perform electrical work of the kind
in dispute and are “skilled and experienced in the opera-
tion of the equipment that’s used” for performing that
work. Laborers presented no evidence that its employees
have the skills to perform the disputed work. Accord-
ingly, we find that the factor of relative skills favors an
award of the work in dispute to employees represented
by IBEW Locals.
5. Economy and efficiency of operations
Lavin testified that employees represented by IBEW
Locals have been performing the disputed work “since
1891,” and that employees represented by Laborers
“didn’t command that type of work nor did they have any
experiential level to be able to do that type of work.”
Laborers presented no evidence regarding this factor.
Accordingly, we find that the factor of economy and ef-
ficiency of operations favors an award of the work in
dispute to employees represented by IBEW Locals.
Conclusions
After considering all of the relevant factors, we con-
clude that employees represented by IBEW Locals are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of employer preference
and past practice, area and industry practice, relative
skills, and economy and efficiency of operations. In
making this determination, we are awarding the work to
employees represented by IBEW Locals 47 and 440, and
not to those unions or its members. The determination is
limited to the controversy that gave rise this proceeding.
Determination of the Dispute
The National Labor Relations Board has made the fol-
lowing Determination of Dispute.
Employees of Pouk & Steinle, Inc., represented by In-
ternational Brotherhood of Electrical Workers, Locals 47
and 440, are entitled to perform all of the Employer’s
work on the Van Buren Project, Riverside, California.