Electrical Workers Local 71 (Capital Electric Line Builders)

National Labor Relations Board - Board Decisions

Apr 16, 2010

355 N.L.R.B. 140 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 24
140
Local Union No. 71 International Brotherhood of
Electrical Workers and Capital Electric Line
Builders, Inc. and R.B. Jergens Contractors and
Local Union No. 534, Laborers International
Union of North America and Laborers District
Council of Ohio, Laborers International Union
of North America1 Case 9–CD–499
April 16, 2010
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Capital Electric Line Builders, Inc. (Capital Electric) and
R.B. Jergens Contractors (Jergens) (collectively, the Em-
ployers) filed a charge on September 17, 2009, alleging
that Local Union No. 71, International Brotherhood of
Electrical Workers (Electrical Workers) violated Section
8(b)(4)(D) of the Act by engaging in proscribed activity
with an object of forcing the Employers to assign certain
work to employees represented by Electrical Workers
rather than to employees represented by Local Union No.
534, Laborers International Union of North America
(Laborers). The hearing was held on December 10,
2009, before Hearing Officer Aranzazu Lattanzio. At the
hearing, Laborers moved to quash the notice of hearing.2
Thereafter, the Employers, Electrical Workers, and La-
borers filed posthearing briefs, and the Employers filed a
memorandum in opposition to Laborers’ motion to
quash.
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 parties stipulated that Capital Electric is engaged
in the business of providing electrical installation ser-
vices from its Dayton, Ohio facility. During the 12-
month period prior to the hearing, Capital Electric, dur-
ing the course and conduct of its business, derived gross

1 Laborers District Council of Ohio is listed on the Notice of Hearing
and joined Local Union No. 534 on its brief. The notice of hearing also
lists both Jergens and Capital Electric as the Employers in this case.
However, it is not disputed that the subcontractor, Capital Electric,
hired and assigned the work to the employees performing the work in
dispute.
2 We find no merit to the Employers’ contention that Laborers did
not raise its motion to quash until after the hearing concluded. The
record shows that Laborers’ moved to quash prior to the close of the
hearing and that the hearing officer deferred the issue to the Board.
revenues in excess of $1 million and purchased and re-
ceived, at its Dayton, Ohio facility, goods and materials
valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Ohio. The parties further stipu-
lated that Jergens is engaged in the business of providing
highway construction services from its Vandalia, Ohio
facility. During the 12-month period prior to the hearing,
Jergens, during the course and conduct of its business,
derived gross revenues in excess of $1 million and pur-
chased and received at its Vandalia, Ohio facility goods
and materials valued in excess of $50,000 directly from
suppliers outside the State of Ohio. The parties further
stipulated, and we find, that the Employers are engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act, and that Laborers and Electrical Workers are
labor organizations within the meaning of Section 2(5) of
the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
Jergens is a general contractor engaged in highway
construction in Ohio, Indiana, and Michigan. Jergens is
bound to a collective-bargaining agreement between La-
borers and the Ohio Contractors Association (Heavy-
Highway Agreement), effective from May 1, 2007, to
April 30, 2010. That agreement, among other things,
covers “Highway Construction” work, including “high-
way lighting” and “signal lighting.” The Heavy-
Highway Agreement also contains a provision, titled
“Subcontractors,” which provides that “all subcontractors
shall be subject to the terms and provisions of this
Agreement. Any Contractor who sublets any of his work
must sublet the same subject to this Agreement.”
Throughout its business history, Jergens has primarily
subcontracted its electrical work on highway projects to
Capital Electric. Those subcontracts typically covered
the installation of traffic signals, lighting, street lighting,
highway lighting, intelligent traffic systems, and over-
head, and underground voltage distribution.
Capital Electric and Electrical Workers are parties to a
collective-bargaining agreement for outside electrical
work (Outside Agreement). That agreement, effective
from December 31, 2007, to January 3, 2010, covers the
“installation and maintenance of highway and street
lighting, highway and street sign lighting, electric mes-
sage boards and traffic control systems, camera systems,
traffic signal work, substation and line construction, in-
cluding overhead and underground projects, . . . [includ-
ing] the operation of all tools and equipment necessary
for the installation of the above projects.” Capital Elec-
tric does not have a collective-bargaining agreement with
Laborers.
ELECTRICAL WORKERS LOCAL 71 (CAPITAL ELECTRICAL LINE BUILDERS)

141
In late July or early August 2009,3 Jergens subcon-
tracted with Capital Electric for the installation of high-
way signalized traffic control systems at the Ohio De-
partment of Transportation Project 090248, involving
intersection improvements on State Route 747 in Butler
County, Ohio (Route 747 project). Capital Electric as-
signed the subcontracted work to its employees, who are
represented by Electrical Workers.
On August 3, Laborers filed a grievance against Jer-
gens, claiming that Jergens’ subcontract with Capital
Electric violated the subcontracting provision of the
Heavy-Highway Agreement. On about August 19, in
response to the grievance, Jergens’ vice president, Vic
Roberts, sent Laborers a letter stating that “[e]lectric
work is not covered under [the Heavy-Highway Agree-
ment],” and that Jergens “is entitled to make work as-
signments to any specialty subcontractor with Collective
Bargaining Agreements in place.” Roberts testified that
Laborers’ field representative, Eddie Deaton, then called
him to explain that although Laborers had not claimed
the signal installation work in the past, “times are . . .
lean and we’re going after the work.”
Also on about August 19, Laborers’ president and field
representative, Jerry Bowling, visited the Route 747 job-
site and spoke with two Capital Electric employees, Jerry
Campbell and Chris Snodderly. Campbell testified that
Bowling informed the employees that he was the presi-
dent and field representative for Laborers, and told them
they were performing Laborers’ work. Campbell further
testified that Bowling told the employees they had two
options: they could allow employees represented by La-
borers to perform the work, or they could sign a contract
with Laborers that authorized a 3-percent dues deduction
from their pay.4 Bowling then provided Campbell with
his business card, and shortly thereafter left the jobsite.5
Later that day, Campbell informed Electrical Workers
Business Manager Patrick Grice about the incident.
Grice then sent a letter, dated August 21, to Capital Elec-
tric concerning the possible reassignment of work to em-
ployees who are not members of Electrical Workers.
The letter stated that the Outside Agreement requires that
Electrical Workers “be the sole and exclusive source of
referral of applicants for employment,” and that “any
breach or violation of the collective-bargaining agree-
ment will result in grievances being filed against Capitol

3 Unless otherwise specified, all dates hereafter are in 2009.
4 Snodderly did not testify at the hearing.
5 Bowling testified that his visit to the jobsite was routine and, at the
time, he did not know about Capital Electric’s contractual relationship
with Electrical Workers. Bowling testified that he introduced himself
to the workers, stated that Laborers had a contract with Jergens and,
after hearing Campbell state that there would be no Laborers on the job,
left the jobsite.
[sic] Electric Line Builders. In addition, Picket Lines,
Strike activity and the filing of Charges with the National
Labor Relations Board will be levied against Capitol
[sic] Electric Line Builders Company.”
B. Work in Dispute
The work in dispute involves the installation of high-
way signalized traffic control systems, including conduit,
loop detectors, signal poles, and foundations in which to
set signal poles, at the Ohio Department of Transporta-
tion Project 090248.
C. Contentions of the Parties
Laborers argues that the notice of hearing should be
quashed, contending that it has not claimed the disputed
work. Laborers argues that it is only pursuing a griev-
ance under the Heavy-Highway Agreement. Laborers
further contends that Bowling’s visit to the Route 747
project jobsite did not entail a claim for the disputed
work, but only involved an attempt to secure dues check-
off cards from the employees working there.6
The Employers and Electrical Workers contend that
there are competing claims for the work in dispute, and
that the dispute is properly before the Board for determi-
nation. They contend that Laborers pressed its claim for
the work through its grievance, in the telephone discus-
sions between officials of Laborers and Jergens, and in
Bowling’s conversation with Capital Electric’s employ-
ees at the Route 747 jobsite. In addition, the Employers
contend that Laborers’ refusal to disclaim the work at the
hearing further demonstrates Laborers’ intent to claim
the work in dispute. The Employers and Electrical
Workers additionally contend that Grice’s August 21
letter to Capital Electric, threatening “Picket Lines” and
“Strike Activity” if the work were reassigned, demon-
strates that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated.
On the merits, the Employers 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-

6 Laborers does not set forth any contentions regarding the merits of
the dispute.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

142
ployees;7 (2) a party has used proscribed means to en-
force its claim to the work in dispute;8 and (3) the parties
have not agreed to a method for the voluntary adjustment
of the dispute.9 On this record, we find that this standard
has been met.
1. Competing claims for 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
these employees have been performing the work. Fur-
ther, Grice’s August 21 letter to Capital Electric specifi-
cally claimed the work in dispute for employees repre-
sented by Electrical Workers.
We also find reasonable cause to believe that Laborers
claimed the work in dispute for the employees it repre-
sents. As set forth above, Campbell testified that Bowl-
ing informed the Capital Electric employees that they
were performing Laborers’ work.10 Contrary to Labor-
ers’ contention, evidence of a claim conveyed directly to
an employer’s employees is sufficient to establish rea-
sonable cause to believe that there is a competing claim
for the disputed work. See Bricklayers (Cretex Con-
struction Services, Inc.), 343 NLRB 1030, 1031–1032
(2004). Moreover, Laborers’ claim for the work is fur-
ther evinced by Bowling’s testimony, wherein he sum-
marized Laborers’ position by stating, “[w]hose work is
it? It’s both of ours.” Therefore, we find that the record
evidence establishes reasonable cause to believe that
there are completing claims for the work in dispute.11

7 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001).
8 See, e.g., Electrical Workers Local 3 (Slattery Skanska, Inc.), 342
NLRB 173, 184 (2004).
9 Operating Engineers Local 150 (R & D Thiel), 345 NLRB 1137,
1138–1139 (2005).
10 Laborers argues that Campbell’s testimony conflicts with the tes-
timony of its representative, Bowling, who stated that he was merely
attempting to obtain the employees’ signatures on authorization cards.
However, “[i]n 10(k) proceedings, a conflict in testimony does not
prevent the Board from finding evidence of reasonable cause and pro-
ceeding with a determination of the dispute.” Sheet Metal Workers
Local 107 (Lathrop Co.), 276 NLRB 1200, 1202 fn. 3 (1985).
11 Because we find that the testimony described above establishes
reasonable cause to believe that Laborers claimed the work in dispute,
we find it unnecessary to address the Employers’ contention that La-
borers’ failure to disclaim the work at the hearing also is indicative of a
competing claim for the work. We also find it unnecessary to address
whether evidence presented by Employers and Electrical Workers
concerning Laborers’ attempts to secure work being performed by
Electrical Workers on other projects further demonstrates that Laborers
claims the work in dispute. In finding reasonable cause to believe that
the Laborers claimed the work in dispute, we do not rely on the Labor-
ers’ grievance claiming that Jergens’ subcontracting of the work to
Capital Electric violated the subcontracting provision of the Heavy-
Highway Agreement. See Laborers (Capitol Drilling), 318 NLRB 809,
810 (1995) (grievance to enforce an arguably meritorious claim against
2. Use of proscribed means
As discussed above, Grice stated in his August 21 let-
ter to Capital Electric that he considered reassignment of
the electrical work to employees other than those repre-
sented by Electrical Workers to be a violation of the col-
lective-bargaining agreement, and that said violation
would result in Electrical Workers engaging in “Picket
Lines” and “Strike activity.” On this basis, we find rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. Bricklayers (Cretex Construction Services,
Inc.), supra, 343 NLRB at 1032.
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.
Based on the foregoing, we find reasonable cause to
believe that there are competing claims for the work in
dispute, that a violation of Section 8(b)(4)(D) has oc-
curred, and that no voluntary method exists for adjust-
ment of the dispute.12 We thus find that the dispute is
properly before the Board for determination, and accord-
ingly deny Laborers’ motion to quash the notice of hear-
ing.
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
Construction), 135 NLRB 1402, 1410–1411 (1962).
The following factors are relevant in making the de-
termination of the dispute.

general contractor that work has been subcontracted in breach of con-
tract with general contractor does not constitute a claim for the work to
the subcontractor). In this case, the Laborers made a claim for the work
directly to Capital Electric by conveying its claim to Capital Electric’s
employees. Cf. Electrical Workers Local 71 (Thompson Electric), 354
NLRB No. 46, slip op. at 3–4 (2009) (union’s assertion that it did not
claim work because it merely filed grievances against general contrac-
tor rejected because union also made claim for work directly to subcon-
tractor).
12 In addition, we reject Laborers’ argument that the notice of hear-
ing should be quashed because the work in dispute has now been com-
pleted. “[T]he 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 (Chi-
cago Steel), 310 NLRB 646, 648 fn. 8 (1993), quoting Operating Engi-
neers Local 150 (Martin Cement), 284 NLRB 858, 860 fn. 4 (1987).
ELECTRICAL WORKERS LOCAL 71 (CAPITAL ELECTRICAL LINE BUILDERS)

143
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certifications con-
cerning the employees involved in this dispute. How-
ever, the Outside Agreement, to which Capital Electric
and Electrical Workers are bound, covers the installation
and maintenance of highway and street lighting and traf-
fic signal work, i.e., work similar to that in dispute in this
case. Although the Heavy-Highway Agreement between
Jergens and Laborers also references highway lighting
and signal lighting work, Capital Electric is not a signa-
tory to that agreement, and there is no evidence that Jer-
gens has authority to assign or control Capital Electric
employees in their performance of electrical work once it
awards a subcontract. See generally Plasterers Local
502 (PBM Concrete), 328 NLRB 641, 644 (1999). Ac-
cordingly, we find that this factor favors an award of the
work in dispute to employees represented by Electrical
Workers.
2. Employer preference and past practice
Capital Electric District Manager Jim Woeste testified
that, since he was hired in 2003, Capital Electric has al-
ways assigned its electric signal work to employees rep-
resented by Electrical Workers. In addition, Woeste tes-
tified that Capital Electric prefers to assign its work to
employees represented by Electrical Workers. Accord-
ingly, we find that this factor favors an award of the
work in dispute to employees represented by Electrical
Workers.
3. Area and industry practice
Grice testified that employees represented by Electri-
cal Workers have been assigned work of the kind in dis-
pute (i.e., installation of highway signalized traffic con-
trol systems) for many years throughout the State of
Ohio, and he is not aware of any traffic signalization
work performed by employees represented by Laborers.
Jergens Vice President Vic Roberts testified that Jergens
has always contracted work similar to the kind in dispute
to Capital Electric or to other subcontractors that use
employees represented by Electrical Workers.
The record presents conflicting evidence as to whether
there is an area practice of using employees represented
by Laborers to perform work of the kind in dispute. On
the one hand, Laborers’ representative, Bowling, testified
that employees represented by Laborers have performed
traffic signal installation work throughout Ohio for many
years. However, as discussed above, Roberts testified
that Laborers’ representative, Eddie Deaton, said in a
telephone conversation that Laborers had not claimed
signal installation work in the past, but that “times are . .
. lean and we’re going after the work.”
Based on the above evidence, we find that this factor
favors an award of the work in dispute to employees rep-
resented by Electrical Workers.
4. Relative skills
Grice, Campbell, and Woeste testified about the skills
and training required of members of Electrical Workers
to reach the level of journeyman traffic signal technician.
Woeste testified that journeyman status requires comple-
tion of a 6000-hour apprenticeship program that includes
on-the-job training, classroom work, and testing. Camp-
bell testified that journeyman traffic signal technicians
receive training in electrical theory, mathematics, and the
National Electrical Code. Grice testified that Electrical
Workers’ apprenticeship training standards require ap-
prentices to master the rules and regulations for traffic
signal technicians. Grice added that Electrical Workers
requires its apprentices to be paired in two-man crews
with journeyman electricians during their apprenticeship
period.
Bowling testified that some members of Laborers re-
ceived training in traffic signal technician work. He did
not, however, provide details on the extent of that train-
ing. Significantly, though, Bowling testified that while
Laborers’ members are able to perform some of the tasks
involved in work of the kind in dispute, such as pouring
concrete, they generally do not perform the electrical
portions of that work. Accordingly, we find that this
factor favors an award of the work in dispute to employ-
ees represented by Electrical Workers
5. Economy and efficiency of operations
The Employers and Electrical Workers argue that this
factor favors an award to the employees that Electrical
Workers represents. In support, they rely on Woeste’s
testimony that employees represented by Electrical
Workers perform all of the tasks involved in signal in-
stallation and are more qualified to perform that work
than are Laborers’ members. In addition, they rely on
Roberts’ testimony that using employees represented by
Laborers would increase Capital Electric’s costs because
he did not believe that these employees could perform
the work adequately. Neither of these witnesses, how-
ever, provided specific details as to how efficiencies
would be achieved by performing the work with employ-
ees represented by Electrical Workers.13

13 In addition, on brief, the Employers contend that subcontractors
utilizing employees represented by Electrical Workers generally submit
the lowest bids for subcontracting jobs. However, there is no record
evidence supporting this claim, and thus there is no explanation as to
whether the purported cost differential would be due to efficiencies
based on greater employee skills, or due to nonrelevant factors such as
wage differentials.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

144
We find that the record does not contain sufficient evi-
dence to find that the factor of economy and efficiency of
operations favors one group of employees over the other.
Conclusion
After considering all the relevant factors, we conclude
that 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, area
and industry practice, and relative skills. In making this
determination we are awarding the disputed work to em-
ployees represented by Electrical Workers, not to that
labor organization or its members.
F. Scope of the Award
The Employers request a broad areawide award cover-
ing 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 contemplates con-
tinuing to assign the work. See, e.g., Laborers Local 243
(A. Amorello & Sons), 314 NLRB 501, 503 (1994). Ac-
cordingly, we shall limit the present determination to the
particular controversy that gave rise to the proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Capital Electric Line Builders Inc., rep-
resented by Local Union No. 71, International Brother-
hood of Electrical Workers are entitled to perform the
installation of highway signalized traffic control systems,
including conduit, loop detectors, signal poles and foun-
dations in which to set signal poles, at the Ohio Depart-
ment of Transportation Project 090248.