Laborers (Henkels & McCoy)

National Labor Relations Board - Board Decisions

Nov 16, 2001

336 N.L.R.B. 1044 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1044
Construction & General Laborers’ District Council of
Chicago and Vicinity and Henkels & McCoy,
Inc., Great Lakes Division and International
Brotherhood of Electrical Workers, Local 196,
AFL–CIO, Party–in–Interest.
International Union of Operating Engineers, Local
150, AFL–CIO and Henkels & McCoy, Inc., and
Great Lakes Division International Brotherhood
of Electrical Workers, Local 196, AFL–CIO,
Party-in-Interest. Cases 13–CD–604–1 and 13–
CD–607–1
November 16, 2001
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
Henkels & McCoy, Inc. (Henkels or Employer) filed
the charges in this Section 10(k) proceeding on March 9
and 30, 2001. The charges allege that the Respondents,
Construction & General Laborers’ District Council of
Chicago and Vicinity (Laborers) and International Union
of Operating Engineers, Local 150, AFL–CIO (Operating
Engineers Local 150 or Local 150), 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 they represent, rather than to employ-
ees represented by International Brotherhood of Electri-
cal Workers, Local 196, AFL–CIO (IBEW Local 196).1
The 10(k) hearing was held on April 30, 2001, before
Hearing Officer Paul Prokop.
The National Labor Relations Board 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, a Pennsylvania corporation, is a utility
contractor. During the past calendar year, it derived
gross revenues in excess of $1 million, and purchased
goods and services valued in excess of $50,000 from
suppliers located outside the State of Illinois. Accord-
ingly, we find that the Employer is engaged in commerce
within the meaning of Section 2(6) of the Act. We fur-
ther find, based on the stipulations of the parties, that the
Laborers, Operating Engineers Local 150, and IBEW
Local 196 are labor organizations within the meaning of
Section 2(5).

1 Sec. 8(b)(4)(D) states in relevant part: “It shall be an unfair labor
practice for a labor organization or its agents . . . to threaten, coerce, or
restrain any person engaged in commerce . . . where [an] object thereof
is . . . forcing or requiring any employer to assign particular work to
employees in a particular labor organization . . . rather than to employ-
ees in another labor organization.”
II. THE DISPUTE
A. Background and Facts of Dispute
On January 1, 2001,2 the Employer entered into a 3-
year contract with Excelon Corporation3 to perform
overhead work, underground residential distribution
(URD) work, and underground (UG) work throughout
the northern region of Illinois, mostly in the Chicago
area. At issue in this proceeding is UG work, which in-
volves the installation of concrete-encased conduit in
underground trenches using hand tools and heavy
equipment machines, including trucks, backhoes, and
bulldozers. As described by the Employer, this work
consists of “digging underground trenches and manholes,
pouring concrete in the trenches, laying the pipe, encas-
ing the pipe in concrete, and, finally, covering the
trenches.”
Although the Employer has collective-bargaining
agreements with all three Unions covering the disputed
work, it assigned the UG work to employees represented
by Operating Engineers Local 150 and the Laborers. As
a result, IBEW Local 196 filed a grievance on February
14, seeking reassignment of the disputed work to mem-
bers of its bargaining unit. In response, Operating Engi-
neers Local 150 and the Laborers each threatened to
strike the Employer to protect their jurisdiction, unless
the Employer withdrew from the grievance proceeding.
The Employer then filed the instant charges with the
Board.
B. The Work in Dispute
As indicated above, the disputed work involves under-
ground conduit and manhole work, including operation
of backhoes and all heavy construction equipment, and
excavating of multi way duct banks and manholes.
C. Contentions of the Parties
The Employer, Operating Engineers Local 150, and
the Laborers contend there is reasonable cause to believe
that Section 8(b)(4)(D) of the Act has been violated.
They further contend the work in dispute should be
awarded to employees represented by Local 150 and the
Laborers based on the relevant factors discussed below.
IBEW Local 196 contends the relevant factors favor an
award of the disputed work to members of its bargaining
unit.
2 All dates are in 2001 unless stated otherwise.
3 Excelon Corporation is the new name for Commonwealth Edison.
336 NLRB No. 108
LABORERS (HENKELS & MCCOY, INC.) 1045
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, it must find
reasonable cause to believe that Section 8(b)(4)(D) of the
Act has been violated, and that the parties have not
agreed on a method for the voluntary adjustment of the
dispute. 29 U.S.C. § 160(k); Teamsters Local 40 (Cus-
tomized Transportation), 327 NLRB 296, 297 (1998).
We find both prerequisites are met in this case.
On March 9, the Laborers sent a letter to the Employer
threatening a strike unless it withdrew from the grievance
proceeding initiated by IBEW Local 196. On March 28,
Operating Engineers Local 150 sent a similar letter.
Those letters constitute reasonable cause to believe that
Section 8(b)(4)(D) has been violated. See Stage Em-
ployees Local 6 (Savvis Center), 334 NLRB 214 (2001).
Further, the parties stipulated there is no agreed-upon or
approved method for voluntary adjustment of this dispute
to which all parties are bound. Accordingly, we find 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 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 (Jones Construc-
tion), 135 NLRB 1402 (1962). The following factors are
relevant in making the determination of this dispute.
1. Certification and collective-bargaining agreements
The parties stipulated there is no Board certification or
order determining the collective-bargaining representa-
tive of the employees performing the work in dispute.
The Employer has a collective-bargaining agreement
with each Union, and each agreement appears to cover
the work in dispute. Consequently, this factor does not
favor any one of the three bargaining units. See Labor-
ers Local 113 (Super Excavators), 327 NLRB 113, 115
(1998).
2. Employer current assignment and preference
The Employer assigned the disputed work to employ-
ees represented by Operating Engineers Local 150 and
the Laborers, and prefers that they continue to perform
the work. This factor therefore favors awarding the dis-
puted work to those employees.
3. Area and industry practice4
The evidence shows that most contractors in both the
Northern Illinois region and the Chicago area assign UG
work to operating engineers and laborers. Indeed, the
evidence shows that in the Chicago area 13 of 15 under-
ground utility contractors follow this practice. IBEW
Local 196 Assistant Business Manager Gary Cope
claimed there were about 250 Local 196 members per-
forming URD and UG work, and that two contractors,
Aldridge and Trenchit, had used electrical workers to
perform UG work. Cope, however, did not know how
many Local 196-represented electrical workers were ac-
tually performing UG work (the disputed work), as op-
posed to URD work. Moreover, the evidence shows that
both Aldridge and Trenchit had assigned UG work to
operating engineers and laborers in the past.
Accordingly, we find this factor favors awarding the
disputed work to employees represented by Operating
Engineers Local 150 and the Laborers.
4. Relative skills and training
Employees represented by Local 150 and the Laborers
complete extensive training dealing specifically with UG
work. For example, Local 150’s apprenticeship program
involves hundreds of training hours operating the heavy
equipment used in UG work. The Laborers’ training
program teaches pipe laying and trench protection skills.
These employees also receive OSHA training. In con-
trast, employees represented by IBEW Local 196 do not
receive any formal training to perform UG work. They
are expected to learn “on the job.”
On balance, we find the greater training requirements
satisfied by employees represented by Local 150 and the
Laborers militates in favor of awarding them the disputed
work.
5. Economy and efficiency of operations
Reassigning the disputed work to employees repre-
sented by IBEW Local 196 would impose on Henkels the
expense of hiring and training new employees and super-
visors, rather than allowing Henkels to complete the pro-
ject with its current supervisors and employee pool. We
have found similar impositions to be inefficient. See
Operating Engineers Local 649 (McDougal Hartmann
Co.), 316 NLRB 212, 215 (1995). Moreover, the evi-
dence shows that the hiring and training of new employ-

4 When relevant, the Board considers as an additional factor the em-
ployer’s past practice in assigning the disputed work. See Savvis Cen-
ter, supra; Plasterers Local 502 (Elliot Construction), 333 NLRB 815
(2001). This is, however, the Employer’s first time conducting UG
work in the Chicago area. Accordingly, we focus instead on area and
industry practice. See Carpenters Local 171 (Knowlton Construction),
207 NLRB 406, 407 (1973).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1046
ees would delay the project for 1 to 4 days, possibly cost-
ing Henkels the contract with Excelon.
IBEW Local 196 maintains that members of its bar-
gaining unit should be awarded the UG work because the
ductwork will ultimately house electrical cables, which
Local 196-represented employees will install. In sup-
port, Local 196 cites Machinists District 118 (Meredith
Printing), 243 NLRB 892 (1979). The Board in that case
found that efficiency was promoted when disputed work
was assigned to employees who were performing other
aspects of the project.
We find Meredith Printing clearly distinguishable.
There, the Board found that the disputed work (fabricat-
ing small metal brackets) was “incidental” to work that
was already being performed by the operating engineers.
Moreover, the record showed the disputed work might
arise intermittently as the operating engineers were per-
forming their duties. In those circumstances, the Board
found economy and efficiency were best served by
awarding the disputed work to the operating engineers.
Here, in contrast, the record indicates that the UG
work is a significant step in the process and precedes the
actual laying of the electrical cables. Thus, the disputed
UG work may not fairly be characterized as “incidental”
to laying electrical cables.
IBEW Local 196 also cites Sheet Metal Workers Local
141 (Fred B. DeBra Co.), 245 NLRB 310 (1979), for the
proposition that “composite crews” (crews composed of
employees represented by different unions) are inher-
ently inefficient in their operation. In that case, however,
the Board found that a proposed composite crew was
inefficient because one group of employees stood idle
while the other performed a specific task. Here, the evi-
dence shows the operating engineers and laborers have
been working together without any similar conflicts.
For these reasons, we find the factor of economy and
efficiency of operations favors awarding the UG work to
employees represented by Operating Engineers Local
150 and the Laborers.
CONCLUSION
After considering all the relevant factors, we conclude
that Henkels’ employees represented by Operating Engi-
neers Local 150 and the Laborers are entitled to perform
the disputed UG work. We reach this conclusion based
on the factors of employer assignment and preference,
area and industry practice, relative skills and training,
and economy and efficiency of operations. In making
this determination, we are awarding the disputed work to
employees represented by the above Unions, not to those
Unions or their members. This determination is limited
to the controversy giving rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Henkels & McCoy, Inc., represented by
Construction & General Laborers’ District Council of
Chicago and Vicinity and International Union of Operat-
ing Engineers, Local 150, AFL–CIO, are entitled to per-
form the underground conduit and manhole work, includ-
ing operation of backhoes and all construction heavy
equipment, and excavating and placing of multi-way duct
banks and manholes throughout Excelon’s northern re-
gion.