Laborers Local 113 (Michels Pipeline Construction)

National Labor Relations Board - Board Decisions

Oct 31, 2002

338 N.L.R.B. 480 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
Laborers Local No. 113, a/w Laborers International
Union of North America and Michels Pipeline
Construction, Inc. and International Union of
Operating Engineers Local 139, AFL–CIO.
Case 30–CD–161
October 31, 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 September 18,
2000, by the Employer, alleging that the Respondent,
Laborers Local No. 113, a/w the Laborers International
Union of North America (Laborers Local 113), violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object of forc-
ing the Employer not to reassign certain work from em-
ployees it represents, who were performing the work, to
employees represented by International Union of Operat-
ing Engineers, Local No. 139, AFL–CIO (Operating En-
gineers Local 139). The hearing was held on October 17
and 18, 2000, before Hearing Officer Angela B. Jaenke.
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 Wisconsin corporation, is an under-
ground utility contractor headquartered in Brownsville,
Wisconsin. During the 12 months preceding the hearing,
it purchased and received goods, materials, and services
valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Wisconsin. The parties stipu-
late, and we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act and that Laborers Local 113 and Operating Engi-
neers Local 139 are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer, as a member of the Wisconsin Under-
ground Contractors Association (WUCA), is signatory to
collective-bargaining agreements with both Unions: the
Sewer, Tunnel and Water Laborers’ Collective-
Bargaining Agreement between WUCA and the Wiscon-
sin Laborers’ District Council, representing Laborers
Local 113; and the Sewer, Water & Tunnel Master
Agreement Area I between WUCA and Operating Engi-
neers Local 139. Both agreements are effective through
May 31, 2003.
Early in 2000,1 the Employer was engaged in the con-
struction of a sewer project, referred to as the North
Shore 6 Project, for the Milwaukee Metropolitan Sewer-
age District. The project requires excavating three verti-
cal shafts. These shafts are located: (1) on a private
easement which extends from Newhall Avenue known as
the WP structure; (2) a site 60-feet north and east of the
WP shaft, referred to as the 097A structure; and (3) at the
intersection of Newhall and Park, referred to as the 136A
structure. Excavation is done by both large surface
backhoes and small underground backhoes (miniexcava-
tors or minibackhoes).2
Vertical shaft excavation begins with a large surface
backhoe being used to dig a hole into the ground. Oper-
ating Engineers-represented employees perform this ini-
tial excavation. The surface backhoe can dig approxi-
mately 16 feet below the surface. As the hole is dug,
external bracing must be erected to secure the sides of
the shaft. Laborers-represented employees install the
bracing. When the surface backhoe reaches its limit, an
Operating Engineers-represented employee uses a crane
to lower a bucket or “clam” into the shaft to remove
loosened soil and muck from the bottom. While the de-
bris is being removed, Laborers-represented employees
stationed inside the shaft shore up the shaft walls. In
situations where a clam cannot be used or where the
ground is too hard, a minibackhoe may be used instead to
further scoop out and remove the soil. The smaller mini-
backhoe is lowered by crane into the bottom of the shaft,
the operator excavates the area from below the surface,
and the shaft walls continue to be shored up. The Em-
ployer assigned the work of operating the minibackhoes
underground to employees represented by Laborers Lo-
cal 113.
In late May, the Employer received a letter postmarked
May 26, but dated March 24, from Operating Engineers
Local 139 Business Representative Pete Wade stating
that Local 139 was filing a formal grievance against the
Employer. The accompanying grievance, also dated
March 24, complained that bargaining unit employee
Brian Meyer was not being paid the proper wages and
fringe benefits for operating a backhoe in the shaft at the
Newhall and Bradford jobsite. The grievance requested

1 Dates refer to the year 2000 unless specified otherwise.
2 The minibackhoe is a diesel-powered tracked machine weighing
between 5000 and 15,000 pounds, having a hydraulic arm excavator
with a bucket at the end of the arm. An operator uses hand and foot
controls to run the equipment. Except for its smaller size, there is es-
sentially no difference between a minibackhoe and a large, surface
backhoe.
338 NLRB No. 51
LABORERS LOCAL 113 (MICHELS PIPELINE CONSTRUCTION) 481
the Employer to pay the employee all applicable back
wages and benefits and to provide Operating Engineers
Local 139 with all payroll records and/or timecards from
the time the job began. The grievance also stated
“[n]othing contained within this grievance is intended
nor should be interpreted to be a request to change the
assignment of the backhoe.”
The Employer responded by letter of June 6. The Em-
ployer stated that the alleged aggrieved employee,
Meyer, was classified as a miner, a Laborers’ classifica-
tion, and is a member of the Laborers’ International Un-
ion of North America. The Employer stated further that
the work Meyer was performing, i.e., “backhoe operation
in a shaft,” had long been established as Laborers’ union
work3 and that the Employer was paying Meyer the con-
tract wage scale and benefits prescribed by its agreement
with Laborers Local 113. The Employer stated that any
suggestion that the underground backhoe work was cov-
ered by Operating Engineers Local 139’s contract was
wrong. Thus, the Employer asserted that there was no
basis for the grievance.
WUCA Executive Director Richard Wanta testified
that in late August Operating Engineers Local 139 Busi-
ness Manager Dale Miller told him that his Union would
strike for 6 weeks in order to gain jurisdiction of the un-
derground backhoe operation. About a month later,
Miller reiterated the threat, but extended the time the
Union would be willing to strike to 3 months. In addi-
tion, Greg Rehak, an employee of another employer,
Super Excavators, testified that during a Labor Day gath-
ering, Operating Engineers Local 139 Vice President
Terrance E. McGowan, referred to a similar, ongoing
controversy with Rehak’s employer over minibackhoe
work, saying, “[W]e’ll see who runs out of money first,
the Operators or Super Excavators.”
In pursuit of its grievance, on August 23, Operating
Engineers Local 139 made a written request to the Fed-
eral Mediation and Conciliation Service for a panel of
arbitrators.
Upon learning of Local 139’s intention to seek arbitra-
tion, on August 30, Laborers Local 113 Business Man-
ager Charles Fecteau advised the Employer that if it

3 The Employer cited decades of historical precedent in assigning
underground backhoe work to the Laborers. In addition, the Employer
referenced a 1998 Board decision and determination of a jurisdictional
dispute involving the same type of work and another Milwaukee-area
employer, Super Excavators, Inc., and the Laborers Local 113 and
Operating Engineers Local 139, in which the employees represented by
the Laborers were awarded the work. Laborers Local 113 (Super Ex-
cavators, Inc.), 327 NLRB 113. The Employer also pointed to a De-
cember 1998 arbitrator’s decision, in which the arbitrator found no
merit to an operating engineer’s grievance against Super Excavators
over the same work assignment.
changed the assignment from the Laborers to Operating
Engineers Local 139, “Local 113 will have no other
choice but to use every means at our disposal, including
striking, to protect the Laborers’ jurisdiction.” The Em-
ployer did not alter the work assignment, but filed the
instant unfair labor practice charge against Laborers Lo-
cal 113 alleging a violation of Section 8(b)(4)(D).
B. Work in Dispute
The work in dispute is the operation of minibackhoes
(miniexcavators) in underground shafts and tunnels at the
North Shore 6 Project for the Milwaukee (Wisconsin)
Metropolitan Sewerage District.
C. Contentions of the Parties
Operating Engineers Local 139 filed a motion to quash
the notice of hearing. It contends that there is no 10(k)
dispute because it has made no claim for the under-
ground backhoe work. The language of the grievance
itself states that it is not to be construed as a claim for the
underground backhoe work.
Local 139 maintains that its grievance does not ask
that the work be reassigned, but rather that the appropri-
ate contract wage and benefit rates be paid to the indi-
vidual running the minibackhoe, irrespective of whether
that individual is represented by the Operating Engineers
or the Laborers.4 Local 139 cites language from its col-
lective-bargaining agreement designating a compensation
rate for operators of “backhoes (excavators) under
130,000 pounds” in support of its position. It states that
it always files a grievance upon learning that a contractor
is paying subcontract wages and fringe benefits and that
it wants to protect against the erosion of the prevailing
wage for employees covered in the backhoe operator
classification.
Local 139 also asserts that Laborers Local 113’s reac-
tion to Local 139’s grievance was a sham designed solely
to invoke the Board’s statutory jurisdictional dispute
process and should not be given credence. The purported
threat to engage in a strike in order to preserve the mini-
backhoe work mischaracterizes the nature of the griev-
ance, which seeks only higher compensation for the
minibackhoe operator. There is no evidence that Local
113 has ever struck an employer over this issue and Lo-
cal 139 argues that it is not likely that Laborers Local
4 Operating Engineers Local 139 acknowledges that its grievance is
similar to the one it filed against Super Excavators, Inc. over its pay-
ment of Laborers Local 113’s rates to the minibackhoe operator. That
matter resulted in a May 2000 unfair labor practice charge in Case 30–
CD–160, issued this day at 338 NLRB 472, and herein referred to as
Super Excavators II. Because of the similarity of issues in these cases,
the entire record of proceedings in that case, as well as that of Super
Excavators I, supra, was entered into the record in the instant proceed-
ing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482
113 would be willing to risk its harmonious relations
with the Employer by disrupting the work.
Finally, Local 139 contends that even assuming there
is a work dispute, both Unions have a dispute resolution
mechanism available to them through their International
Unions and that the Employer would abide by the deci-
sion made through that vehicle.5
The Employer asserts that a jurisdictional dispute does
exist, citing Laborers Local 113’s stipulation to that ef-
fect and the text of Operating Engineers Local 139’s
grievance. The Employer contends that despite Local
139’s claims to the contrary, its assertion that its contract
terms should be applied to the operator of the under-
ground minibackhoe is tantamount to a claim for the
work. Local 139’s grievance erroneously describes the
aggrieved employee as a “Bargaining-unit employee”
and argues that its contract language covers the job. Fur-
ther, the Employer maintains that the language of the
grievance itself clearly demonstrates that Local 139 is
arguing that the operation of the underground backhoes
falls under the terms of its collective-bargaining agree-
ment.
Moreover, the Employer argues that Local 139’s posi-
tion that it is not claiming the work is belied by contrary
statements from its own representatives. As described
above, Business Manager Miller twice threatened to
strike over the work and Vice President McGowan re-
ferred to Local 139’s ongoing dispute with another em-
ployer involving the same type of work. Both of these
statements,6 the Employer asserts, suggest that the Oper-
ating Engineers Local 139 intended to pursue the work at
whatever cost.7
In addition, the Employer argues that Operating Engi-
neers Local 139’s prevailing wage contention is not
credible, given that its grievance seeks to have its own
contract rate of $24.79 per hour given effect, rather than
the established prevailing hourly rate of $22.41. Finally,
citing Operating Engineers Local 139’s record of griev-
ances and prior jurisdictional disputes over the same is-
sue and the strong likelihood that the matter will arise
again, the Employer requests a broad order awarding the
work to the Laborers.
Laborers Local 113 argues that Operating Engineers
Local 139’s purported disclaimers are disingenuous and
that its grievance reveals a coercive attempt to obtain the

5 This contention is contrary to Operating Engineers Local 139’s
stipulation at the hearing that there is no agreed-upon dispute resolution
process.
6 Because neither Miller nor McGowan was called to testify,
Wanta’s and Rehak’s accounts stand uncontradicted.
7 In its brief, the Employer also cites statements made following the
close of the hearing by Business Manager Miller which appear in the
November 2000 Operating Engineers Local 139 Wisconsin News.
work for its members. Operating Engineers Local 139’s
request that the Employer pay its contractual wage rates
to the individual performing the backhoe work under-
ground is clearly a claim for the work under its collec-
tive-bargaining agreement. Moreover, Laborers Local
113 states that its collective-bargaining agreement with
the Employer gives its unit members the right to perform
the work. Finally, Laborers Local 113 has informed the
Employer of its intent to keep the work and reiterated
that it will use all means necessary to enforce its right to
it, including striking.
Both the Employer and Laborers Local 113 contend
that an award in favor of employees represented by La-
borers Local 133 is justified by that Union’s collective-
bargaining agreement, employer preference and past
practice, area and industry practice, relative skills and
training, and economy and efficiency of operations.
They further point out that prior a Board decision8 in-
volving an employer in the same industry, the same two
unions, the same work, and in the same geographic area
favors an award to Laborers Local 113.
Following the close of the hearing, the Employer
moved, and Laborers Local 113 joined in the motion, to
reopen and supplement the record. Operating Engineers
Local 139 opposed their motion.9
D. Applicability of the Statute
Before the Board may proceed with a determination of
a dispute under Section 10(k) of the Act, it must be satis-
fied 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.
Initially, we find that there are extant competing
claims for the work. Laborers Local 113 has at all times
claimed the work in dispute; Operating Engineers Local
139 has, despite assertions to the contrary, also claimed
the work. We find that Operating Engineers’ Local
139’s grievance, coupled with testimony regarding its
representatives’ interpretation of its contract with the
Employer, establish that it was claiming the underground
minibackhoe work for its unit members.
8 Super Excavators I.
9 The Employer and the Laborers seek to have admitted into the re-
cord the November 2000 issue of the Operating Engineers Local 139
Wisconsin News, an official publication of that labor organization. The
Employer and Laborers contend that a column written by Local 139
Business Manager Dale Miller contains statements that support their
contention that the Operating Engineers is claiming the work at issue in
this proceeding. We deny the motion as the existing record is sufficient
to decide the issue before us.
LABORERS LOCAL 113 (MICHELS PIPELINE CONSTRUCTION) 483
We are not persuaded by Operating Engineers Local
139’s characterization of its grievance as seeking en-
forcement of standards rather than reassignment of the
work. By declaring that an objective of its grievance is
the application of contractually prescribed wage and
benefit rates to the underground backhoe work, Operat-
ing Engineers Local 139 is taking the position that the
work is covered by its contract and is, therefore, assert-
ing jurisdiction over it.10 Any ambiguity regarding Op-
erating Engineers’ actual objective is erased by subse-
quent statements by Local 139 Representatives Miller
and McGowan, in which they declare a firm commitment
to go to great lengths to secure the backhoe work. In the
face of such unequivocal statements, Local 139’s claim
for the work is clear.
Finally, the Employer, Laborers Local 113 and Operat-
ing Engineers Local 139 stipulated during the hearing
that there is no agreed-upon method for the voluntary
adjustment of the work in dispute. While Operating En-
gineers Local 139 has since changed its position11 and
asserts in its posthearing brief that a dispute resolution
mechanism is available, neither the Employer nor Labor-
ers Local 113 acknowledges the existence of such
mechanism. Thus, we find that the parties have not all
agreed to be bound by any system.
We find that Laborers Local 113 Business Manager
Fecteau’s letter of August 30 constitutes a threat of eco-
nomic action by his union if the work were reassigned to
Operating Engineers Local 139-represented employees.
There is no evidence that these statements were a sham.12
Therefore, reasonable cause exists to believe that a viola-
tion of Section 8(b)(4)(D) has occurred within the mean-
ing of Section 10(k) of the Act.
In view of the circumstances described above, and ab-
sent an agreed-upon method for the voluntary adjustment

10 By filing the grievance, Local 139 is necessarily claiming that the
work performed by the minibackhoe operator is covered by its collec-
tive-bargaining agreement. In its posthearing brief, Local 139 admits
that the grievance effectively asserts that Local 139 is “the sole and
exclusive [bargaining] agent for Michel’s minibackhoe operators.”
Thus, Local 139’s grievance literally seeks to have the disputed work
assigned to employees that it represents. Our finding that Local 139
claims the disputed work is consistent with the Board’s decisions in
Laborers Local 113 (Super Excavators, Inc.) (Super Excavators I), 327
NLRB 113 (1998); and in Laborers Local 113 (Super Excavators, Inc.)
(Super Excavators II), 338 NLRB 472 (2002), issued this day, in which
the Board found that Local 139 claimed the same disputed work.
11 After Local 139 entered into the stipulation that no voluntary dis-
pute resolution mechanism exists, the hearing officer rejected its be-
lated attempt to introduce evidence that such mechanism was, in fact,
available. In its posthearing brief, Local 139 reasserts that, assuming a
jurisdictional dispute exists, there is a voluntary means through which it
can be resolved.
12 See Teamsters Local 6 (Anheuser-Busch), 270 NLRB 219, 220
(1984).
of the dispute, we find that the matter is properly before
the Board for determination. Thus, we find no merit in
the Operating Engineers Local 139’s argument that the
notice of hearing should be quashed.
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 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining
agreements
There is no evidence that either Union has been certi-
fied to represent employees performing the disputed
work. Both Unions assert, however, that their respective
collective-bargaining agreements entitle them to the
work.
Article 1 of the Laborers Local 113 contract covers
“all public works construction including construction,
excavation, installation . . . of sewer and water mains . . .
tunnels, shafts, and appurtenances and related work.”
Article 21 defines the Laborers’ jurisdiction of public
works as including “construction, excavation, installation
. . . of sewer and water mains . . . shafts, tunnels . . . and
related work.” In addition, the classification “backhoe
operator” was included in the wage rate addendum of the
Laborers’ agreement effective June 1, 2000.13
Article VI of the Operating Engineers Local 139 col-
lective-bargaining agreement sets forth the Union’s ju-
risdiction and lists the equipment covered by the agree-
ment. There is no reference to backhoes in that section.
In article X, however, the wage rate section, the class 1
rate is assigned to operators of backhoes over 130,000
pounds and the class 2 rate is assigned to those running
backhoes less than 130,000 pounds.
Based on the above, we find that both contracts pro-
vide an arguable basis for covering the work in dispute.
Accordingly, we find the factor of collective-bargaining
agreements does not clearly favor an award to either
group of employees.
13 This change was made following the Board’s decision in Super
Excavators I.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 484
2. Employer preference and assignment
The Employer prefers to assign, and has assigned, all
below-grade work to employees represented by Laborers
Local 113.14 The Employer cites the Laborers’ familiar-
ity with and experience in the shoring-up procedures that
are performed at the same time as the minibackhoe exca-
vation process and points to its long and successful his-
tory of assigning the work to Laborers Local 113-
represented employees.
Accordingly, we find that the factor of the Employer’s
preference and assignment favors an award of the dis-
puted work to employees represented by Laborers Local
113.
3. Area and industry practice
While the Employer maintains that it has assigned La-
borers Local 113-represented employees exclusively to
underground backhoe work for 20 years, there is testi-
mony that on two or three occasions in the late 1980s,
and once in 1995, that Operators Local 139-represented
employees performed underground backhoe work. The
record discloses, largely through anecdotal accounts, that
Operating Engineers Local 139-represented employees
have occasionally performed this work for area employ-
ers. As evidenced through written letters of assignment,
however, many employers in the Milwaukee metropoli-
tan area assign the work to Laborers Local 113. From
April 1998 through June 2000, 100 percent of the under-
ground backhoe operations have been assigned to Labor-
ers Local 113.
We conclude from the foregoing that the factor of the
Employers’ past practice and area and industry practice
favors awarding the work to Laborers Local 113-
represented employees.
4. Relative skills, training, and safety
Operating Engineers Local 139 points to its training
facility in Coloma, Wisconsin, where individuals are
taught to operate backhoes ranging from 10,000 to
130,000 pounds. A new course has recently been added
entitled “Advanced Excavator,” in which skills necessary
for tunnel projects are stressed. In addition, trainees
must complete safety and maintenance courses before
operating any equipment.
Laborers Local 113 point to its long experience record
of having safely performed underground minibackhoe
work while at the same time accomplishing the closely
related functions of buttressing the shaft (rigging and

14 Michel’s vice president, Weltin, stated that Laborers Local 113-
represented employees have been performing all below-grade work
since the first project with the Company in 1980 or 1981.
lagging the sides) to shore up the sides as work pro-
gresses as evidence of their superior skill.
The Employer acknowledges that both groups have
comparable skill levels at operating the minibackhoe
underground, but notes that the Laborers-represented
employees possess additional critical skills necessary for
the safe and efficient excavation process. Laborers are
adept at handling related tools and equipment needed in
the shoring operation which must take place in coordina-
tion and almost simultaneous with the minibackhoe op-
eration. Because of space limitations when working in
these shafts, this extra versatility is important if not es-
sential. It enables a Laborers-represented underground
backhoe operator to assist in performing these related
duties safely and correctly with less risk of accident or
injury.
Accordingly, we find that while Operating Engineers
Local 139 provides formalized training for backhoe op-
erations, and employees represented by Operating Engi-
neers Local 139 and Laborers Local 113 are equally
skilled at running the minibackhoe itself, safety consid-
erations warrant awarding the underground work to em-
ployees represented by Laborers Local 113.
5. Economy and efficiency of operations
As noted above, employees represented by Operating
Engineers Local 139 lack the expertise possessed by em-
ployees represented by Laborers Local 113 in performing
the attendant shoring functions that occur alongside the
minibackhoe work. The Laborers Local 113-represented
employees’ additional expertise in this area allows them
to perform a dual-purpose while working in the shaft.
This versatility provides obvious savings in terms of
man-hour costs and significantly enhances efficiency of
operations. Having fewer employees accomplishing the
same task with less risk of accidents or injuries reduces
costs in time, money, and personal safety. Accordingly,
we find that the efficiency and economy of operation
would be enhanced by awarding the work in dispute to
employees represented by the Laborers.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by Laborers Local No. 113,
affiliated with Laborers International Union of North
America are entitled to perform the work in dispute. We
reach this conclusion relying on factors of employer
preference, assignment, and past practice, area practice,
safety, and efficiency and economy of operations.
In making this determination, we are awarding the
work to employees represented by Laborers Local 113,
not to that Union or its members.
LABORERS LOCAL 113 (MICHELS PIPELINE CONSTRUCTION) 485
Scope of the Award
The Employer requests that the Board issue a broad
award, covering the entire Laborers Local 113 region,
including Milwaukee, Ozaukee, and Washington Coun-
ties in Wisconsin, in order to thwart future disputes at
jobsites where the equipment at issue is used. The Em-
ployer cites the behavior of both Laborers Local 113 and
Operating Engineers Local 139, as evidenced by the re-
peated appearances before the Board in jurisdictional
disputes, in support of its request.15 The Employer ar-
gues that Operating Engineers Local 139 has demon-
strated its proclivity to file grievances over the assign-
ment of the work to non-Operating Engineers-
represented employees and that Laborers Local 113 has
promised to take any job action required—including
strikes—to counter those grievances. Thus, both Unions
appear poised to continue the controversy.16 In addition,
the Employer states that the volume of this type of work
is likely to increase over the next few years, in light of
planned projects being undertaken by the Milwaukee
Metropolitan Sewerage District, thereby enhancing the
likelihood and frequency of similar disputes arising
again.
While the pattern of conduct by both Unions suggests
that a similar dispute may arise again, it is the Board’s
practice to decline to grant an areawide award in cases in
which the charged party represents the employees to

15 The Employer refers to Super Excavators I and II, supra, which
preceded this case.
16 The Employer argues that while Laborers Local 113 is the party
charged with engaging in proscribed conduct a broad award to employ-
ees it represents should not be precluded inasmuch as it was the Operat-
ing Engineers Local 139’s grievance which initiated the dispute and
precipitated the threat.
whom the work is awarded and to whom the Employer
intends to continue to assign the work.17 Accordingly, in
these circumstances, we find a broad award is not war-
ranted. The determination is therefore limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing determination of dispute.
Employees of Michels Pipeline Construction, Inc., rep-
resented by Laborers Local 113, a/w Laborers Interna-
tional Union of North America, are entitled to perform
the operation of the miniexcavator/backhoe in the under-
ground shafts and tunnels at the North Shore 6 Project
for the Milwaukee Metropolitan Sewerage District.

MEMBER LIEBMAN, concurring.
I agree that the evidence in this case is sufficient to
support a finding that Operating Engineers Local 139 has
claimed the underground backhoe work. The case is
distinguishable, in my view, from Super Excavators, Inc.
(Super Excavators II), 338 NLRB 472 (2002), also is-
sued this day, where I dissented from the majority’s con-
clusion that Local 139 had made a claim to the backhoe
work. While the terms of the grievance filed against the
Employer here parallel the grievances at issue in Super
Excavators II, the stated intent of the grievance here is
inconsistent with Miller’s and McGowan’s uncontro-
verted statements indicating an objective beyond merely
upholding Local 139’s contractual standards. Given this
extrinsic evidence, I would find reasonable cause to be-
lieve that Local 139 has made a claim for the work in this
case.
17 Laborers (Paul H. Schwendener, Inc.), 304 NLRB 623 (1991),
Laborers Local 1359 (Krall’s Masonry), 281 NLRB 1034 (1986).