Electrical Workers Local 71 (Thompson Electric, Inc.)

National Labor Relations Board - Board Decisions

Jul 14, 2009

354 N.L.R.B. 344 (N.L.R.B. 2009)

354 NLRB No. 46
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Local Union No. 71, International Brotherhood of
Electrical Workers and Thompson Electric, Inc.
and the International Union of Operating Engi-
neers, Local 18, AFL–CIO. Case 8–CD–504
July 14, 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).
Thompson Electric, Inc. (the Employer) filed a charge on
December 3, 2008, alleging that Local Union No. 71,
International Brotherhood of Electrical Workers (Electri-
cal 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 employees repre-
sented by Electrical Workers rather than to employees
represented by the International Union of Operating En-
gineers, Local 18, AFL–CIO (Operating Engineers). The
hearing was held on January 15 and 23, 2009, before
Hearing Officer Steven Wilson. At this hearing, Operat-
ing Engineers moved to quash the proceeding. Thereaf-
ter, the Employer, Electrical Workers, and Operating
Engineers each filed a posthearing brief.
The National Labor Relations Board1 affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error. On the entire record, the Board makes the follow-
ing findings.
I. JURISDICTION
The Employer is an Ohio electrical contractor engaged
in commercial, industrial, utility, residential, and high-
way electrical work, including the removal and installa-

1 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 Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, __ F.3d
__, 2009 WL 1676116 (2d Cir. June 17, 2009); New Process Steel v.
NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed __
U.S.L.W. __ (U.S. May 27, 2009) (No. 08-1457); Northeastern Land
Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No.
08-1878(May 20, 2009). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for re-
hearing denied Nos. 08-1162, 08-1214 (July 1, 2009).
tion of highway lights and traffic signal fixtures. The
parties stipulated that, annually, the Employer purchases
and receives goods valued in excess of $50,000 directly
from points located outside the State of Ohio. The par-
ties further stipulated, and we find, that the Employer is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that Electrical Workers and Oper-
ating Engineers are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer installs and maintains highway and
street sign lighting, electric message boards, and traffic
control systems in Ohio. The Employer is a member of
the American Line Builders Chapter, N.E.C.A. (NECA)
and, as such, is a party to a collective-bargaining agree-
ment with Electrical Workers, effective December 31,
2007, to January 3, 2010. The agreement with Electrical
Workers requires the Employer to use Electrical Work-
ers-represented employees for the “installation and main-
tenance of highway and street lighting, highway and
street sign lighting, electric message boards and traffic
control systems, camera systems, traffic signal work,
substation and line construction, including overhead and
underground projects” and “includes the operation of all
tools and equipment necessary for the installation of the
above projects.”
The Employer does not have a collective-bargaining
agreement with Operating Engineers. However, Operat-
ing Engineers has a collective-bargaining agreement with
the Ohio Contractors Association (OCA), of which
Shelly & Sands, Inc. (Shelly) is a member. That agree-
ment, effective May 1, 2007, to April 30, 2010, covers
“Highway Construction,” and requires that “all subcon-
tractors . . . be subjected to the terms and provisions of
this Agreement.”
In February 2008,2 Shelly awarded a subcontract to the
Employer for the installation of replacement traffic sig-
nalization devices and highway lighting, including a traf-
fic video detection system, at the intersection of Steels
Corners and State Route 8 in Summit County, Ohio. The
construction project was publicly funded by the Ohio
Department of Transportation. As part of this project,
the Employer was responsible for the removal of existing
traffic signalization devices and highway lighting and the
excavation and trenching associated with the light-
ing/signal work. The Employer assigned that work to its
Electrical Workers-represented employees.

2 Unless otherwise specified, all dates are in 2008.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Electrical Workers Business Manager Patrick Grice
testified that in late May or early June (after the project
had commenced) the Employer’s manager, Brad
Ritenour, notified him that members of Operating Engi-
neers had approached Electrical Workers-represented
employees at the jobsite, stating that they were doing
Operating Engineers’ work. Grice added that he told
Ritenour in response that “that’s our work.”
On July 11 and August 12, Operating Engineers filed
two grievances against Shelly, both challenging the use
of Electrical Workers-represented operators to perform
the excavating work on the project.3 By letter dated Au-
gust 8, Shelly notified the Employer of the grievances
and warned that should Operating Engineers prevail
“[Shelly] will deduct these costs from the total due on
[the Employer’s] subcontract.” Subsequently, the Em-
ployer notified Electrical Workers of the grievances filed
against Shelly and the possibility of the costs of these
claims being deducted from the Employer’s subcontract
with Shelly.
On October 14, Grice met with the Employer’s presi-
dent and CEO, Larry Thompson. During the meeting,
Thompson asked Grice if there was any way the Em-
ployer could employ an Operating Engineers member on
the project as a way of relieving some of the pressure
from Shelly. Grice stated that “there’s no way that I’m
going to concede IBEW jobs,” and that he would “do
whatever he had to do to protect [his] members’ right to
perform this work.” Thompson responded that he would
continue to pursue other options to relieve the problem.
On October 20, Grice sent a letter via fax to the Em-
ployer stating that under its collective-bargaining agree-
ment with NECA Electrical Workers is the Employer’s
exclusive source for the referral of applicants for em-
ployment. The letter further stated that Electrical Work-
ers would not relinquish any jobs covered under the col-
lective-bargaining agreement, and that any breach or
violation of the agreement would result in a grievance
against the Employer.
On October 21, the Employer met with Operating En-
gineers President Ken Triplett, its vice president and
business representative, Floyd Jeffries Sr., and its District
6 representative, Steve DiLoretto. A representative for
Shelly, Andy Leffler, was also present. Thompson began
by stating that the purpose of the meeting was to “try to
resolve the issue on the state road project and any and all
future issues that [the Employer] might encounter with
the Operating Engineers relative to who can operate the
equipment.” Triplett stated that his union has “no prob-

3 Operating Engineers settled its grievances with Shelly on January
6, 2009.
lems with Thompson Electric” and, pointing at Leffler,
said that “our problem [is] with . . . Shelly & Sands.”
Thompson stated that the Employer has been finan-
cially threatened by the dispute, because if Operating
Engineers’ grievances against Shelly were successful the
amounts owed by Shelly would be deducted from
Shelly’s contractual payments to the Employer. Jeffries
responded that the work is clearly Operating Engineers’
work. Thompson testified he then asked what work on
the project Operating Engineers was claiming, and
Jeffries responded that it’s Operating Engineers’ work “if
it’s got rubber tires or tracks.”4 Thompson then asked
Jeffries whether Operating Engineers would claim work
using mini-excavators and trenchers. Jeffries again re-
sponded, “[A]nything with rubber tires and tracks is our
work.” Thompson also asked about the operation of
bucket trucks and line trucks, and Jeffries responded that
if the equipment is used on a highway construction pro-
ject, Operating Engineers would claim it for its members.
Thompson then expressed concerns about assigning
the disputed work to Operating Engineers members, be-
cause the Employer’s trenching work is sporadic and
incidental. Jeffries responded that this was not his con-
cern.
Thompson asked Jeffries what he believed his options
were with respect to this job and similar jobs in the fu-
ture. Jeffries suggested that Thompson sign a binding
letter of assent to the statewide OCA collective-
bargaining agreement with Operating Engineers and hire
its members to run the Employer’s equipment. Thomp-
son rejected this, stating that this would conflict with the
Employer’s contract with Electrical Workers. Jeffries
then suggested that the Employer sign a limited “project
letter of assent,” allowing the Employer to either employ
Operating Engineers members or to continue using Elec-
trical Workers-represented employees while remitting all
fringe benefits to Operating Engineers’ benefit funds.
Thompson rejected this option as well.
Thompson also testified that for 2 weeks in November
the Employer temporarily relinquished the excavation/
trenching work on the project to Shelly, thereby allowing
a composite crew of Operating Engineers and Electrical
Workers operators to perform the installation work.5
Shelly sent the Employer a breakdown of the costs asso-
ciated with the work performed by the Operating Engi-
neers, and deducted the wages, fringe benefit contribu-

4 Triplett similarly testified that Jeffries responded that “if it had
rubber tires and tracks, it was [Operating Engineers’].”
5 Electrical Workers’ member, Thomas Carney, similarly testified
that at some time in the fall the Employer’s employees were pulled off
the jobsite and Operating Engineers began to work on the project.
ELECTRICAL WORKERS LOCAL 71 (THOMPSON ELECTRIC, INC.) 3
tions, and equipment rental charges from its contractual
payments to the Employer.
In a letter to the Employer dated November 26, Elec-
trical Workers stated that it had come to its attention that
the Employer had or was “in the process of assigning
electrical work covered under the [NECA] Collective
Bargaining Agreement to non-IBEW employees.” The
letter further stated that “[b]latant disregard for the Col-
lective Bargaining Agreement will result in grievances
being filed against [the Employer],” that “Picket Lines
and Strike activity will also be levied against [the Em-
ployer],” and that Electrical Workers “will do what’s
necessary to protect the integrity of the Collective Bar-
gaining Agreement and IBEW jobs.”
B. Work in Dispute
The work in dispute is the operation of backhoes,
mini-excavators, small directional borings, trenchers, line
trucks, and other similar equipment related to the per-
formance of electrical equipment installations, site grad-
ing, and pole placement and erection at the Steels Corner
Interchange jobsite located in Stow, Ohio.
C. Contentions of the Parties
The Employer and Electrical Workers contend that
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated, and that there are compet-
ing claims for the disputed work. They contend that Op-
erating Engineers pressed its claim for the work directly
to the Employer when, during the October 21 meeting,
Jeffries told Thompson that the disputed work on the
jobsite is clearly Operating Engineers’ work, and that
such work belonged to members of Operating Engineers
if it involves “rubber tires or tracks.” They further con-
tend that, consistent with a claim for the work in dispute,
Operating Engineers proposed that the Employer either
sign a letter of assent or a project labor agreement. In
view of this evidence, the Employer and Electrical
Workers assert that there are competing claims for the
work at issue, and that the Operating Engineers’ motion
to quash should be denied.
On the merits, they assert that the work in dispute
should be awarded to employees represented by Electri-
cal Workers. They rely on the factors of collective-
bargaining agreements, employer preference and past
practice, area and industry practice, relative skills, and
economy and efficiency of operations.
Operating Engineers contends that the notice of hear-
ing should be quashed. 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 a claim to the sub-
contractor for the work in dispute), Operating Engineers
argues that it only pursued contractual grievances against
Shelly for failing to honor the subcontracting clause in
the OCA collective-bargaining agreement. Operating
Engineers also argues that the Employer and Electrical
Workers contrived the threat in order to create a jurisdic-
tional dispute and thereby obtain the work assignment
preferred by the Employer.
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;6 (2) a party has used proscribed means to en-
force its claim to the work in dispute;7 and (3) the parties
have not agreed on a method for the voluntary adjust-
ment of the dispute.8 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.
Electrical Workers has at all times claimed the work in
dispute for the employees it represents, and these em-
ployees have been performing the work. Further, its No-
vember 26 letter to the Employer claimed the work in
dispute for the employees it represents.
Operating Engineers contends, however, that it has not
claimed the work in dispute, but rather merely filed
grievances against Shelly for breach of the subcontract-
ing clause in the OCA collective-bargaining agreement.
We disagree. As stated above, Thompson’s testimony
shows that at the October 21 meeting Jeffries told
Thompson that the disputed work clearly belonged to
Operating Engineers, and that if the work on this project
and others involved “rubber tires or tracks” it is Operat-
ing Engineers’ work. Jeffries further stated, according to
Thompson, that the Employer could resolve the dispute
by signing a binding letter of assent and hiring employ-
ees represented by Operating Engineers, or by signing a
limited project letter of assent permitting the use of Elec-
trical Workers employees but with fringe benefit pay-
ments remitted to Operating Engineers benefit funds.
Moreover, Thompson testified that for a period of time in
November the Employer acquiesced to a request from
Shelly to allow Operating Engineers’ members to per-

6 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001).
7 See, e.g., Electrical Workers Local 3 (Slattery Skanska, Inc.), 342
NLRB 173, 174 (2004).
8 Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137,
1138–1139 (2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
form the disputed work, and that the Employer reim-
bursed Shelly for the cost of the work performed by Op-
erating Engineers members.9 Although Operating Engi-
neers disputes the validity of this testimony, we find that
it is sufficient to establish reasonable cause to believe
that Operating Engineers made a claim for the disputed
work. See J.P. Patti Co., 332 NLRB 830, 832 (2002).10
2. Use of proscribed means
We also find that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated. It is well es-
tablished that a picketing threat constitutes proscribed
means. See Bricklayers (Cretex Construction Services),
343 NLRB 1030, 1032 (2004). As set forth above, Elec-
trical Workers stated in its November 26 letter to the
Employer that if the Employer assigned the work to em-
ployees other than those represented by Electrical Work-
ers “Picket Lines and Strike activity [would] be levied
against [the Employer],” including “what’s necessary to
protect the integrity of the Collective Bargaining Agree-
ment and IBEW jobs.”
Operating Engineers argues that Electrical Workers’
threat was contrived in order to obtain the work assign-
ment through this 10(k) proceeding. Operating Engi-
neers does not, however, offer any direct evidence dem-
onstrating that Electrical Workers did not intend its threat
seriously. In the absence of such evidence, a charged
party’s use of language that, on its face, threatens eco-
nomic action is sufficient to find reasonable cause to
believe that Section 8(b)(4)(D) has been violated. See,
e.g., Cretex, supra 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.
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-

9 See 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 ab-
sence of an explicit claim).
10 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).
In view of the evidence that Operating Engineers made a claim di-
rectly to the Employer for the work in dispute and actually performed
some of the work (in addition to pursuing grievances against Shelly),
we find the instant case distinguishable from Capitol Drilling, supra.
cordingly deny Operating Engineers’ motion to quash the
notice of 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. 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, 1410 (1962).
The following factors are relevant in making the de-
termination in this dispute.11
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 is bound to a
collective-bargaining agreement between NECA and
Electrical Workers. That agreement covers the “installa-
tion and maintenance of highway and street lighting,
highway and street sign lighting, electric message boards
and traffic control systems, camera systems, traffic signal
work, substation and line construction, including over-
head and underground projects” and “includes the opera-
tion of all tools and equipment necessary for the installa-
tion of the above projects.”
In contrast, it is undisputed that the Employer does not
have a collective-bargaining agreement with Operating
Engineers.12 Accordingly, we find that this factor favors
an award of the disputed work to the employees repre-
sented by Electrical Workers.
2. Employer preference and past practice
The Employer, in accordance with its past practice, as-
signed the disputed work to its employees represented by
Electrical Workers.
At the hearing, Thompson testified that the Employer
has performed this type of work for approximately 20
years using Electrical Workers-represented employees,
and that the Employer prefers that this work remain with
Electrical Workers-represented employees. There is no
evidence that the Employer has used employees repre-

11 In view of its contention that it has not claimed the disputed work
for its members, Operating Engineers declined to present any evidence
on the merits.
12 Although Operating Engineers has a collective-bargaining agree-
ment with Shelly, that agreement is not applicable because the com-
pany that ultimately controls and makes 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).
ELECTRICAL WORKERS LOCAL 71 (THOMPSON ELECTRIC, INC.) 5
sented by Operating Engineers to perform work of the
kind in dispute. Accordingly, we find this factor favors
an award of the disputed work to employees represented
by Electrical Workers.
3. Area and industry practice
Electrical Workers Business Manager Grice testified
that employees represented by Electrical Workers have
performed work of the kind in dispute for many years.
Grice also testified that Electrical Workers members per-
formed this work in the surrounding areas of Cleveland,
Columbus, Dayton, Cincinnati, and Mansfield, Ohio. In
addition, Electrical Workers-member Thomas Carney
testified that for many years he and other members of
Electrical Workers have worked on other area projects
involving work of the kind in dispute.
As noted above, the record shows that, for a brief pe-
riod, Shelly performed the work in dispute using em-
ployees represented by Operating Engineers. However,
there is no other evidence suggesting an area or industry
practice of Operating Engineers members performing
work of the kind in dispute. Accordingly, we find that
this factor favors an award of the work in dispute to em-
ployees represented by Electrical Workers.
4. Relative skills
Electrical Workers presented testimony that its mem-
bers possess the requisite skills and training to perform
the disputed work, and that they are experienced in doing
so. Specifically, Grice testified that operators represented
by Electrical Workers are trained and experienced in
performing the work involved, and Carney testified that
members of Electrical Workers possess the skills needed
to operate the equipment used to perform the work. In
addition, Thompson testified that his Electrical Workers-
represented employees have the skills and experience to
operate the equipment, and that they are required to at-
tend extensive safety training before they are permitted
to operate the Employer’s equipment.
Operating Engineers President Ken Triplett testified
that Operating Engineers members have operated trench-
ing and excavation equipment in highway construction.
However, Operating Engineers did not present evidence
specifically addressing whether its members possess the
relative skills required to perform work of the kind in
dispute.13 Accordingly, we find that this factor favors an
award of the work in dispute to employees represented
by Electrical Workers.

13 As noted above, the record indicates that for a brief period in No-
vember Shelly employed members of Operating Engineers to perform
the work in dispute. However, that evidence does not indicate the ex-
tent of the relative skills and experience possessed by these employees.
5. Economy and efficiency of operations
Thompson testified that it is more efficient for the Em-
ployer to perform the work in dispute using members of
Electrical Workers. He explained that when performing
the disputed work these employees perform related tasks
such as installing electrical conduits, pulling wires, and
setting junction boxes. Thompson added that these tasks
would not be performed by Operating Engineers-
represented employees if they were assigned the work in
dispute. Grice similarly testified that while performing
the work in dispute Electrical Workers-represented em-
ployees assist in the performance of other work, such as
building foundation forms, inserting the cages, pouring
concrete, setting poles, and setting mast arms. In view of
the foregoing evidence, we find that this factor favors an
award of the work in dispute to employees represented
by Electrical Workers.
Conclusions
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 certifications and
collective-bargaining agreements, 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 Electrical Workers, not to that
Union or its members. The determination is limited 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 Thompson Electric, Inc., represented by
Local Union No. 71, International Brotherhood of Elec-
trical Workers, are entitled to perform the operation of
backhoes, mini-excavators, small directional borings,
trenchers, line trucks, and other similar equipment re-
lated to the performance of electrical equipment installa-
tions, site grading, and pole placement and erection at the
Steels Corner Interchange jobsite located in Stow, Ohio.
Dated, Washington, D.C. July 14, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD