Laborers Local 113 (Super Excavators, Inc.)

National Labor Relations Board - Board Decisions

Oct 31, 2002

338 N.L.R.B. 472 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 472
Laborers’ International Union of North America,
Local 113, AFL–CIO and Super Excavators,
Inc., and International Union of Operating En-
gineers, Local 139, AFL–CIO. Case 30–CD–160
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 May 12,
2000, by the Employer, alleging that the Respondent
Laborers’ International Union of North America, Local
113, AFL–CIO (Laborers Local 113), violated Section
8(b)(4)(D) of the Act by engaging in proscribed activity
with an object of forcing the Employer not to reassign
certain work from employees it represents, who were
performing the work, to employees represented by Inter-
national Union of Operating Engineers, Local 139, AFL–
CIO (Operating Engineers Local 139). The hearing was
held on June 6, 2000, before Hearing Officer Janice K.
Gifford.
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 Employer, a Wisconsin corporation, is an under-
ground excavating company with its principal office in
Menomonee Falls, Wisconsin. During the 12 months
preceding the hearing, it purchased and received goods,
material, and services valued in excess of $50,000 di-
rectly from suppliers located outside the State of Wis-
consin. The parties stipulate, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that Laborers Local
113 and Operating Engineers Local 139 are labor organi-
zations within the meaning 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 Collective-Bargaining Agree-
ment between WUCA and the Wisconsin Laborers’ Dis-
trict Council, representing Laborers Local 113; and the
Sewer, Water & Tunnel Master Agreement Area I be-
tween WUCA and Operating Engineers Local 139.
During the first week of March 2000,1 the Employer
began constructing an underground sewer system, known
as the Becher Street Tunnel Project, for the city of Mil-
waukee. The project requires excavating approximately
three-quarters of a mile of “open cut” or surface trench,
as well as nearly a mile of underground tunnel, accessed
via 17 vertical shafts (holes) dug into the ground. The
Employer assigned employees represented by the Operat-
ing Engineers Local 139 to perform the surface level,
open cut backhoe work. It assigned Laborers Local 113-
represented employees to operate a smaller, mini-
excavator (also called a mini-backhoe) for below-grade
work.
Excavating a shaft is done in several stages. The ini-
tial excavation, beginning at ground level, is done with a
100,000-pound backhoe operated by an Operating Engi-
neers-represented employee. This large surface backhoe
is used to dig a hole approximately 5-feet deep. Once
that is completed, Laborers-represented employees install
bracing in the hole to shore up the sides to keep the shaft
from collapsing. Next, the soil at the bottom of the shaft
must be loosened, either manually by Laborers Local
113-represented employees or by using a mini-backhoe
that has been lowered into the shaft. The loosened soil is
gathered into a bucket or “clamshell” which is lifted by
crane to the surface. Finally, and simultaneous with the
excavation of the shaft, Laborers-represented employees
construct shoring around its sides to maintain stability
and prevent a cave-in.
By the time of the hearing, the Employer had used the
smaller, mini-backhoes on underground vertical shafts at
three locations: the intersection of 5th Street and Becher
Street, 5th Place and Becher Street, and the intersection
of Muskego Avenue and Becher Street.2
Not long after the project began, the Employer’s presi-
dent, Jeffrey L. Weakly, heard from Jobsite Superinten-
dent Greg Rehak that business agents from Operating
Engineers Local 139 were present at the Becher Street
Tunnel project site. Weakly was concerned about the
possibility of the Operating Engineers filing a grievance
over its use of Laborers-represented employees to oper-
ate mini-backhoes below ground in tunnels and shafts.
Operating Engineers Local 139 had filed similar griev-
ances against the Employer in 1997 and 1998 over its
assignment of Laborers Local 113-represented employ-
ees to operate these smaller backhoes underground on a
job known as the 30th and Brown Project. Those griev-
ances led to an unfair labor practice proceeding in which

1 Dates hereafter refer to 2000.
2 The Muskego and Becher location is referred to as 22nd and Be-
cher in the Operating Engineers’ March 17 grievance, infra.
338 NLRB No. 50
LABORERS LOCAL 113 (SUPER EXCAVATORS, INC.) 473
the Board awarded the work to employees represented by
Laborers Local 113.3
Weakly informed Laborers Local 113 Business Repre-
sentative Charles Fecteau about the Operating Engineers’
apparent interest in the underground backhoe work. On
March 20, Weakly received a written response dated
March 16, from Fecteau stating, “It is the intent of the
Laborers Union to do all in it’s [sic] power and use all
lawful means to protect the jurisdiction entrusted to the
aforementioned unions by the International Union.”
Thereafter, by letter of March 27, Operating Engineers
Local 139 Business Representative Willie D. Ellis in-
formed Weakly that “Local 139 is presently investigating
a possible contract violation concerning the company’s
use of a mini-backhoe on its underground projects in the
Milwaukee area.” He requested information about the
types of underground backhoes being used, the location
of the Employer’s projects, and the names and wage rates
of the individuals operating the backhoes. The letter
stated “nothing contained in this letter is intended to be,
nor should it be interpreted to be, a request by Local 139
to assign the operation of the mini-backhoe to employees
represented by Local 139.”
By letter of April 6, Weakly informed Ellis that, pur-
ported disclaimers notwithstanding, he viewed the letter
as a claim by Operating Engineers Local 139 for the
mini-backhoe work. Weakly stated further that any
grievance filed by Local 139, irrespective of its self-
characterization or the type of remedy sought, would also
be viewed as a competing claim for the work.
On May 8, Weakly received two letters, one dated
March 17, and the other April 19, from Operating Engi-
neers Local 139 Business Representative Fran Wewers.4
Each letter included a grievance. The March 17 griev-
ance sought backpay and benefits for the backhoe opera-
tion in the shaft at 22nd and Becher (which is actually
the Muskego Avenue and Becher Street location.) The
April 19 grievance sought backpay and benefits for the
backhoe operation in the shaft at 5th Place and Becher.
The nature of both grievances was described as “employ-
ees not being paid proper wages & benefits for operating
backhoe . . . in shaft.” Weakly sent copies of these let-
ters and grievances to Fecteau. The Employer denied
both grievances and they remained pending at the time of
the hearing.
On May 4, Weakly received a letter from Fecteau.
Citing the “endless battle [with the Operating Engineers]
over the backhoes in the shaft,” Fecteau requested a letter

3 Laborers Local 113 (Super Excavators), 327 NLRB 113 (1998).
This will be referred to hereafter as Super Excavators I.
4 The record is clear that Wewers signed the grievances at the re-
quest of Ellis who was unavailable to sign them himself.
of assignment for underground backhoes. On May 10,
Weakly received a fax from Laborers Local 113 Assis-
tant Business Manager John Schmitt referring to the Op-
erating Engineers’ grievances. It stated, “Should the
assignment continue to be imperilled [sic], Local No. 113
has no other choice but to use every means at it’s [sic]
disposal, including striking, to protect our jurisdiction.”
The Employer continued its assignment of the work to
employees represented by the Laborers Local 113 and
filed the instant charge.
B. Work in Dispute
The work in dispute is the operation of the mini-
excavator mobile backhoes below ground in vertical
shaft and tunnel construction on the sewer project at the
Becher Street Tunnel Project in Milwaukee, Wisconsin.
C. Contentions of the Parties
Operating Engineers Local 139 filed a Motion to
Quash the notice of hearing contending that there is no
10(k) dispute because it has made no claim for the work
of the operation of the backhoe. Operating Engineers
contends that its inquiries regarding the pay and benefit
rates being paid to the operator of the mini-backhoe were
merely monitoring the enforcement of its contract. The
written request stated on its face that it was not “intended
to be, nor should it be interpreted to be, a request by Lo-
cal 139 to assign the operation of the mini-backhoe to
employees represented by Local 139.” Because the Em-
ployer’s response revealed that it was not paying the op-
erators of the mini-backhoe the wage rates provided for
under its agreement with the Operating Engineers Local
139, the Operating Engineers filed a grievance. The
grievance was filed on behalf of the employees perform-
ing the work, irrespective of their Operating Engineers or
Laborers status, and requested the Employer pay them
wages consistent with the applicable (Operating Engi-
neers Local 139) collective-bargaining agreement. The
terms of the grievance itself reiterated that “nothing con-
tained within the grievance is intended, nor should it be
interpreted to be, a request to change the assignment of
the backhoe.”
Operating Engineers Local 139 contends that the relief
sought, i.e., “all applicable back wages and fringe bene-
fits with interest to be paid to the individual employee(s)
assigned to the backhoe,” makes clear that it is not at-
tempting to have the work reassigned to employees it
represents, but rather that whatever employee(s) who
perform the work be paid at the contractually-prescribed
level. The grievances merely seek to enforce area stan-
dards.
The Employer asserts that a jurisdictional dispute ex-
its. Operating Engineers Local 139’s characterization of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474
its grievances notwithstanding, the Employer states that
both Unions have claimed the work and that Laborers
Local 113 has threatened to strike in support of its claim.
They argue that Operating Engineers Local 139’s pur-
ported disclaimer is invalid because its grievances, on
their face, seek to enforce the jurisdictional language of
its collective-bargaining agreement and identify Local
139’s “bargaining unit employees” as being aggrieved.
Moreover, Operating Engineers Local 139 Business
Manager Miller testified that he believes the jurisdic-
tional language of the collective-bargaining agreement
supports Operating Engineers-represented employees
running the mini-backhoes.5 The Employer contends
therefore, that the “area standards” argument is an after-
the-fact effort to avoid the Board’s jurisdiction under
Section 10(k).
In addition, the Employer requests a broad order
awarding the work to Laborers Local 113. Noting that
this is the second time a dispute has arisen involving the
same parties over this type of work, the Employer con-
tends that the conduct and statements of both Unions
suggest that they will each continue to assert their right
to perform any similar work which may arise in the fu-
ture. Thus, there is a likelihood of future disruptions as a
result of their continuing, conflicting claims.
Laborers Local 113 essentially reiterates many of the
arguments raised by the Employer, asserting that Operat-
ing Engineers Local 139’s pursuit of grievances request-
ing the Employer to pay Operating Engineers wage rates
to employees performing underground mini-backhoe
work amounts to a claim under its collective-bargaining
agreement for the work. In addition, the Laborers Local
113 maintains its right to perform the work assigned to it,
that it has informed the Employer of its intent to retain
that work, and that it will use all necessary means to en-
force continuation of the assignment, including striking.
Both the Employer and Laborers Local 113 contend
that an award of the work to employees represented by
Laborers Local 113 is warranted by the parties’ collec-
tive-bargaining agreement, the Employer’s preference
and past practice, area and industry practice, relative
skills and training, and economy and efficiency of opera-
tions. Laborers Local 113 further points out that the
prior Board decision (Super Excavators I, supra) involv-
ing the same parties and the same type of work favors an
award to Laborers-represented employees, as does an

5 Art. VI, sec. 6.1 lists various equipment to which Operating Engi-
neers Local 139-represented employees will be assigned. Despite the
absence of any reference to backhoes, Business Manager Miller testi-
fied that backhoe operations are covered because they are listed within
Art. X, sec. 10.1, the wage rate classification section of the contract.
arbitrator’s decision that issued subsequent to Super Ex-
cavators I.6
Following the close of the hearing, the Employer
moved, and the Laborers joined in the motion, to reopen
and supplement the record. Operating Engineers Local
139 filed an opposition to their motion.7
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.8
Having had its pay-in-lieu approach treated as tanta-
mount to a claim for work in Super Excavators I, Operat-
ing Engineers Local 139 now offers a variation of that
theory. Rather than asking that employees it represents
be specially compensated for not having been assigned
the work, Local 139 now seeks to have its contract wage
rates applied directly to the employee assigned to operate
the mini-backhoe, irrespective of the fact that this indi-
vidual is represented by Laborers Local 113. While this
refinement would not impose the “double jeopardy” bur-
den of the pay-in-lieu remedy, the fact remains that Local
139, by filing the grievance, is necessarily claiming that
the work performed by the mini-backhoe operator is cov-
ered by its collective-bargaining agreement.
The grievance asserts that the Employer violated, inter
alia, section 1.3 of its collective-bargaining agreement
with Local 139, which provides as follows: “the Em-
ployer hereby agrees to assign all work that is to be per-
formed in the categories described in [the agreement] to
employees in the bargaining unit covered by this Agree-
ment,” i.e., to employees that Local 139 represents. In
its posthearing brief, Local 139 specifically asserts that
“the operation of the mini-backhoe in the shaft is covered
6 The November 18, 1998, arbitrator’s decision dismissing Operating
Engineers Local 139’s grievance based upon the earlier dispute was
introduced into the record of this proceeding as Emp. Exh. 17.
7 The Employer and Laborers Local 113 seek to have admitted into
the record the November 2000 issue of the Operating Engineers Local
139 Wisconsin News, an official publication of that union. They con-
tend that a column written by Operating Engineers Local 139 Business
Manager Dale Miller contains statements that support their contention
that his union is claiming the work at issue in this proceeding. We find
that the existing record contains sufficient evidence to decide the issue
before us and it is therefore unnecessary to consider any additional
materials. Accordingly, we deny the motion to reopen and supplement
the record.
8 Carpenters Local 275 (Lymo Construction Co., Inc.), 334 NLRB
422, 423 (2001); Teamsters Local 259 (Globe Newspaper Co.), 327
NLRB 619, 622 (1999); Laborers Local 113 (Super Excavators), 327
NLRB 113, 114 (1998).
LABORERS LOCAL 113 (SUPER EXCAVATORS, INC.) 475
by the Local 139 Master Agreement,” and that it is “the
sole and exclusive bargaining agent for all employees”
who perform that work. Thus, Local 139’s grievance
literally seeks to have the disputed work assigned to em-
ployees that it represents. See Laborers Local 931 (Carl
Bolander), 305 NLRB 490, 491 (1991) (a claim to the
work in dispute based on an asserted contractual right to
the work “constitutes a claim to the work”).
The testimony of Local 139 Business Manager Miller,
who participated in negotiations for the collective-
bargaining agreement between the Operating Engineers
and the Employer, provides further support for finding
that Local 139 is asserting a claim to the dispute work.
Miller stated that, in his view, his Union’s contract juris-
diction covers the operation of the backhoes within the
shaft, i.e., that the work in dispute properly belonged to
Local 139. This statement of intent is consistent with
Local 139’s statements and actions in Super Excavators I
and in Michel’s Pipeline, 338 NLRB 480 (2002), issued
this day, which also evidence Local 139’s long-standing
and consistent position that it does, in fact, claim the dis-
puted work. In these circumstances, we find that Operat-
ing Engineers Local 139 has made a claim for the dis-
puted work.
Thus, we reject our dissenting colleague’s contention
that Local 139’s grievance does not seek the reassign-
ment of the disputed work to an employee represented by
Local 139. Her position is belied by the language of the
grievance itself and by Local 139’s statements and ac-
tions in this and other similar proceedings. Our dissent-
ing colleague fails to justify her curious conclusion that
this grievance, on its face, is not a claim for the disputed
work, or her apparent belief that Local 139 has consis-
tently claimed this very work, previously with this very
same employer and, contemporaneously with this dis-
pute, with at least one other employer in the very same
area, but has not done so in this case.
To the extent that the dissent relies on the language in
Local 139’s grievance disclaiming any interest in having
the disputed work reassigned, that disclaimer is inconsis-
tent with the grievance itself and with Local 139’s state-
ments and conduct described above. Accordingly, the
purported disclaimer is ineffective. See Operating Engi-
neers Local 150 (Austin Co.), 296 NLRB 938, 939
(1989) (party raising issue of disclaimer “has the burden
of proving a clear, unequivocal, and unqualified dis-
claimer of all interest in the work in dispute.” (emphasis
in original)). We likewise reject the dissent’s reliance on
Local 139’s assertion of an area standards rationale for
its actions. Regardless of whether the Employer’s as-
signment of the disputed work to employees represented
by the Laborers would affect area standards or the pre-
vailing wage rate, Local 139’s grievance concerning that
work assignment is sufficient to establish the existence,
for the purpose of this proceeding, of competing claims
to that work. Electrical Workers IBEW Local 701 (Fed-
eral Street Construction), 306 NLRB 829, 830–831
(1992) (rejecting union’s claim that its alleged efforts to
enforce area standards was not a claim for the disputed
work).9
Rather than asking that one of its unit members be
specially compensated for not having been assigned the
work, Local 139 instead seeks to have its contract wage
rates applied directly to the employee assigned to operate
the mini-backhoe, irrespective of the unit to which he or
she may belong. While this refinement would not im-
pose the “double jeopardy” burden of the pay-in-lieu
remedy, it nevertheless would require the Employer to
shoulder the Operating Engineers’ contract costs irre-
spective of its assignment preference. Thus, despite Op-
erating Engineers’ effort to restyle its grievance to dis-
guise its intent, we find its remedial objective substan-
tively the same as in Super Excavators I; that is, a claim
under its contract for the mini-backhoe work.10
The testimony of Operating Engineer Local 139 Busi-
ness Manager Miller, who participated in negotiations for
the collective-bargaining agreement between the Operat-
ing Engineers and the Employer, provides further support
for finding that the Operating Engineers is asserting a
claim to the work. He stated that, in his view, his Un-
ion’s contract jurisdiction covers the operation of the
backhoes within the shaft, i.e., that the work in dispute
properly belonged to Local 139. In these circumstances,
we find that Operating Engineers Local 139 has made a
claim for the mini-backhoe work.
Operating Engineers also contends that Laborers Local
113’s purported threats of economic action in the event
the mini-backhoe work were reassigned are a sham, de-
signed merely to bring the case before the Board. Oper-
ating Engineers Local 139 asserts that there is no valid
reason for the Laborers to strike because the grievance it
filed merely seeks application of a higher pay rate, not
reassignment of the work away from Laborers-

9 In Super Excavators I, Operating Engineers Local 139 further un-
dermined its own characterization of the purpose of its grievance by
admitting in a cover letter that it was seeking assignment of the work.
10 We find Operating Engineers Local 139’s effort to encompass its
actions within the holding of Laborers (Capitol Drilling Supplies), 318
NLRB 809 (1995), unpersuasive. That case involved a union’s griev-
ance against a general contractor alone, and not against the subcontrac-
tor who actually had the authority to assign the work involved. Absent
a direct claim (grievance) against the subcontractor, the Board found no
competing claim by the union for the work and quashed the notice of
10(k) hearing.
Member Cowen agrees that Capitol Drilling is distinguishable and
therefore does not pass on whether that case was correctly decided.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476
represented employees. Moreover, the Employer ac-
knowledges that the Laborers have never engaged in a
strike over this issue.
We reject Operating Engineers Local 139’s characteri-
zation of Laborers Local 113’s threat and find that Fec-
teau’s March 16 letter and Schmitt’s May 10 fax to the
Employer each contained a valid threat. These commu-
nications establish that Laborers Local 113 interpreted
Operating Engineer Local 139’s grievance as seeking to
obtain the mini-backhoe work. They were intended to
warn the Employer that it would take economic action,
including striking, if the work was reassigned. There is
no evidence that these statements were a sham.11 There-
fore, we find that reasonable cause exists to find that a
violation of Section 8(b)(4)(D) has occurred within the
meaning of Section 10(k) of the Act.
The Employer, the Laborers, and the Operating Engi-
neers stipulated at the hearing that there is no agreed-
upon method for the voluntary adjustment of the work in
dispute. Absent an agreed-upon method for the volun-
tary adjustment of the dispute, we find that the matter is
properly before the Board for determination. Thus, we
find no merit in the Operating Engineers’ 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 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 (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 collective-
bargaining agreements entitle them to the disputed work.
The Employer is party to separate collective-
bargaining agreements with the Operating Engineers
Local 139 and Laborers Local 113. As a member of the
Wisconsin Underground Contractors Association
(WUCA), the Employer is signatory to the Sewer, Water,
& Tunnel Master Agreement Area I with Operating En-
gineers Local 139. Also through its WUCA member-

11 See Teamsters Local 6 (Anheuser Busch), 270 NLRB 219, 220
(1984).
ship, the Employer is party to the Sewer, Tunnel, and
Water Laborers’ Collective Bargaining Agreement with
Wisconsin Laborers’ District Council which represents
Laborers Local 113. Both contracts are effective from
June 1, 1998 through May 31, 2003.
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.
Article VI of the Operating Engineers Local 139 con-
tract sets forth the Union’s jurisdiction and lists the
equipment covered by the agreement. There is no refer-
ence to backhoe in that section. In the wage rate section
however, Class 1 rate is assigned to Operating Engineers
running backhoes (excavators) over 130,000 pounds and
Class 2 rate is assigned to those running backhoes (exca-
vators) less than 130,000 pounds.
Based on the above, we find that while the Laborers
Local 113 collective-bargaining agreement contains lan-
guage apparently covering the work in dispute, so too
does the Operating Engineers Local 139 contract argua-
bly encompass the work. Therefore, we find the factor of
collective-bargaining agreements does not clearly favor
an award to either group of employees.
2. Employer preference and assignment
The Employer prefers to assign, and has assigned, all
underground work to employees represented by Laborers
Local 113 because they are familiar with and experi-
enced in the shoring-up procedures and help to fill the
two-man teams required on each crew. Accordingly, we
find that the factor of employer preference and assign-
ment favors an award of the disputed work to employees
represented by Laborers Local 113.
3. Area and industry practice
The evidence indicates that within the last 10 years the
Employer has almost invariably assigned the work of
operating mini-excavators at excavation projects to em-
ployees represented by the Laborers. The only excep-
tions appear to have occurred in an emergency situation
in 1997 and an instance when a site superintendent made
an assignment at a jobsite.12 Evidence shows that in the
past 20 years, Laborers Local 113-represented employees
12 These instances occurred prior to the hearing in Super Excavators
I. The record in that proceeding was admitted into evidence in this
proceeding as a Jt. Exh.
LABORERS LOCAL 113 (SUPER EXCAVATORS, INC.) 477
have performed the majority of this type of work for
Milwaukee area contractors, and since 1998, all such
assignments have been to Local 113.
Operating Engineers Local 139 adduced evidence dur-
ing the hearing in Super Excavators I showing that other
area employers have assigned work of the type at issue to
employees it represents. During the hearing in this pro-
ceeding, Operating Engineers Local 139 Business Repre-
sentative Ellis provided anecdotal evidence that in Feb-
ruary 2000, an Operating Engineers-represented em-
ployee ran a backhoe below ground for a 3-day period
for Kenny Construction Company, after which time the
work was performed by a Laborers-represented em-
ployee.
We conclude from the foregoing that the Employer’s
past practice, as well as area and industry practice, favor
awarding the work to the Laborers Local 113-represented
employees.
4. Relative skills, training, and safety
Operating Engineers Local 139 points to its training
facility in Coloma, Wisconsin, which offers classes for
operating backhoes ranging in size from 10,000 to
130,000 pounds. Instruction is provided for operating a
backhoe in close proximity to other employees. The
Employer has admitted that it is satisfied that Operating
Engineers Local 139-represented employees operate the
larger surface backhoes safely and efficiently.
The Employer is also satisfied with the performance of
Laborers Local 113 employees’ operation of the mini-
backhoe. The Employer emphasizes, however, that the
excavation of shafts and tunnels requires more than just
operating the mini-backhoe and that removing soil and
shoring up the sides of the shaft are integral parts of the
task. The shoring up process itself—which is quintes-
sential Laborers-type work—is a two-person job. It re-
quires familiarity with certain tools and equipment and
close coordination with one another as well as close co-
ordination with the operator of the mini-backhoe. Be-
cause of space limitations in the shaft, employees must
be sufficiently skilled to work together cooperatively in
order to perform the entire operation correctly and safely.
A Laborers-represented mini-backhoe operator is famil-
iar with and competent not merely to assist in, but also
actually to perform the shoring up functions that consti-
tute a vital aspect of the work in the shaft. Experience
with these attendant shaft construction duties not only
contributes to the successful completion of the task, but
also enhances its safe completion.
Accordingly, we find that while Operating Engineers
Local 139 has formalized training for backhoe operation,
and both the Operating Engineers and Laborers Local
113 are equally skilled at running the mini-backhoe,
safety considerations warrant awarding the work to La-
borers Local 113-represented employees.
5. Economy and efficiency of operations
Once soil is removed from an excavation site with a
backhoe, the sides of the resulting shaft must quickly be
buttressed in order to prevent cave-ins. This involves
rigging and lagging of the sides of the hole, trimming
away the dirt, and “haypinning” with steel rebar and hay
to secure the walls at their base. This shoring up of the
shaft is acknowledged to be Laborers work. Operating
Engineers, who are proficient with backhoe operation,
are not trained nor do they normally perform the atten-
dant duties of securing the shaft walls. Thus, if an Oper-
ating Engineers-represented employee were running the
mini-backhoe, it would be necessary for a Laborers-
represented employee to enter the shaft to perform the
shoring up tasks after the backhoe work is complete.
This would mean that an Operating Engineers Local 139-
represented backhoe operator would remain idle while
the two-person shoring operation took place. By con-
trast, a Laborers-represented mini-backhoe operator,
upon completing the backhoe work, normally gets off the
backhoe and assists his fellow Laborers-represented em-
ployee in completing the shoring work. In the event the
work is awarded to the Operating Engineers, another
Laborers-represented employee would have to be as-
signed to complete the two-person team on each shaft
crew. Accordingly, we find that the factor of economy
and efficiency of operation favors awarding the disputed
work to employees represented by Laborers Local 113.
CONCLUSIONS
After considering all the relevant factors, we conclude
that employees represented by the Laborers’ Interna-
tional Union of North America, Local 113, AFL–CIO,
are entitled to perform the work in dispute. We reach
this conclusion relying on the factors of employer prefer-
ence, 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 the Laborers, not to
that Union or its members.
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 prevent future disputes at
jobsites where the equipment at issue is being used. The
Employer cites the behavior of both Laborers Local 113
and Operating Engineers Local 139, as evidenced by
their prior appearance before the Board in a similar juris-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478
dictional dispute, in support of its request.13 The Em-
ployer argues that Operating Engineers Local 139 has
demonstrated its proclivity to file grievances over the
assignment of the work to non-Operating Engineers-
represented employees and that Laborers Local 113 has
promised to take any action required—including strik-
ing—to counter those grievances. Thus, both Unions are
poised to continue the controversy.14 In addition, the
Employer states that the volume of this kind 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 similar disputes may arise again, it is the Board’s
practice to decline to grant an area-wide award in cases
in which the charged party represents the employees to
whom the work is awarded and to whom the Employer
intends to continue to assign the work.15 Accordingly, in
these circumstances, we find a broad award is not war-
ranted. The determination is therefore 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 Super Excavators, Inc., represented by
Laborers’ International Union of North America, Local
113, are entitled to perform the operation of the mini-
excavator (backhoe) in below ground shaft and tunnel
excavations on the sewer project ongoing at the Becher
Street Tunnel Project in Milwaukee, Wisconsin.

MEMBER LIEBMAN, dissenting.
Unlike my colleagues, I would find that Operating En-
gineers Local 139 did not make a claim to the disputed
work, and I would therefore grant its Motion to Quash
this Section 10(k) proceeding. In my view, the griev-
ances filed in this case by Local 139 were fundamentally
different from those at issue in Super Excavators I, 327
NLRB 113 (1998), and do not constitute an effective
claim for the underground excavation work.
Local 139 filed two grievances, on March 17 and April
19, 2000. Both identify the issue as the Employer’s fail-

13 Super Excavators I, supra.
14 The Employer argues that while Laborers Local 113 is the party
charged with engaging in proscribed conduct, a broad award to em-
ployees it represents should not be precluded inasmuch as it was the
Operating Engineers Local 139’s grievance which initiated the dispute
and precipitated the threat.
15 Bricklayers (W.R. Weis Co.), 336 NLRB 699, 702 (2001); Plumb-
ers Local 562 (Grossman Contracting Co.), 329 NLRB 516, 528
(1999); Laborers (Paul H. Schwendener, Inc.), 304 NLRB 623 (1991).
ure to pay the proper wages and fringe benefits to the
employee operating the backhoe in the shaft. Both
grievances describe the relief sought in identical terms:
that is, all applicable back wages and fringe benefits to
be paid “to [the] individual employee(s) assigned to
backhoe.” Each grievance states that it is neither “in-
tended nor should be interpreted to be a request to
change the assignment of the backhoe.” Nothing in the
grievances suggests that Local 139 actually was seeking
the reassignment of the backhoe work to an Operating
Engineers-represented employee. Rather, the grievances
seek only that the individual (a Laborers-represented
employee) performing that work be paid at the rate speci-
fied in the Operating Engineers’ contract.
While a disclaimer of any interest in reassignment of
the disputed work is, of course, not necessarily control-
ling, here there is no evidence presented that is inconsis-
tent with a disclaimer. Indeed, the stated purpose of the
grievances is confirmed by the testimony of Local 139
Business Manager Miller and Business Representative
Ellis.1 They explained that, to resolve the grievances, the
Employer need only pay the backhoe operator(s) at the
rates specified in its collective-bargaining agreement
with Local 139. Ellis described the grievances as de-
signed to ensure that the Employer “paid the proper
wages, fringes, and benefits for the individual that was
performing these duties.”2 He specifically denied that
Local 139 was seeking to have the individual who was
performing the underground backhoe work replaced with
a different individual who was represented by Local 139.
Miller and Ellis further explained that Local 139 nego-
tiates Master Agreements to establish universal wage
rates for work performed within its geographic jurisdic-
tion. In their view, should a contractor pay wage rates
beneath those set forth in the Master Agreement, not only
would the Union’s negotiated terms and conditions be
undermined, but the state’s prevailing wage rate, estab-
lished through a survey of the rates actually paid for
various types of work, would also be brought down.
Thus, the Operating Engineers’ grievances sought to pro-
tect an interest separate and independent from any claim
for the underground backhoe work itself: the preserva-
tion of area standards. I find merit in Local 139’s posi-
tion.
The majority nonetheless concludes that the grievances
were tantamount to a claim to the work, citing Super
Excavators I. At issue in that earlier case was a griev-
ance filed by Local 139 seeking “pay-in-lieu” of work.
A pay-in-lieu remedy does not directly seek reassign-
1 The grievances were filed following Ellis’ investigation and at his
direction.
2 Tr. of record of proceedings at p. 193.
LABORERS LOCAL 113 (SUPER EXCAVATORS, INC.) 479
ment of the work, but it would require the Employer to
pay back wages and benefits, plus interest, to individuals
who would have been referred by Local 139 to perform
the underground backhoe work, but for the Employer’s
assignment of the work to non-Local 139-represented
workers. This remedy would compel the Employer to
pay twice for the same work: once to the employee(s)
who actually performed the job and again to the Operat-
ing Engineers-represented individual(s) who did not re-
ceive the assignment. The Board has held that a pay-in-
lieu grievance may constitute a competing claim for
work.3
Here, by contrast, Operating Engineers Local 139’s
grievances do not seek reassignment or pay-in-lieu.
Rather, the grievances seek only that the Employer pay
the employee(s) who actually performs the work at the
(higher) rate specified in the Local 1309 collective-
bargaining agreement. True, requiring the Employer to
pay the Operating Engineers’ contract rate as a remedy
may defeat its economic incentive for assigning the work
to Laborers-represented employees, but it is speculation
to say that the Employer would necessarily decide to
reassign the work.4
What is key here is the relief sought, for that shows
what the Union seeks to achieve. Local 139 has a con-
tract with the Employer arguably covering the backhoe
work, and although it unsuccessfully sought to claim the
work itself, it should be able to defend the wage stan-
dards of that contract without automatically triggering a
jurisdictional dispute. Its previous effort to seek reas-

3 Carpenters Los Angeles Council (Swinerton & Walberg), 298
NLRB 412, 414 (1990); United Slate, Tile & Composition Roofers,
Local 30 v. NLRB, 1 F.3d 1419, 1427 (3d Cir. 1993). Cf. Longshore-
men ILWU Local 7 (Georgia-Pacific), 291 NLRB 89 (1988), where the
Board reversed an earlier decision and concluded that a pay-in-lieu
grievance filed before a 10(k) determination does not constitute unlaw-
ful coercion under Sec. 8(b)(4)(ii)(D) of the Act.
4 Contrast a “pay-in-lieu” remedy where the employer would more
likely reassign the work to the grieving union than pay double wages.
signment of the work through its “pay-in-lieu” grievance
surely does not forever foreclose it from otherwise seek-
ing to enforce wage rates that it believes the Employer is
undercutting. Because I see nothing compelling us to
treat Local 139’s grievances as a question of disguised
intent, I take them at face value—directed at maintaining
contractual and area standards. The majority’s puzzle-
ment at my position, which distinguishes between a
claim for the work and the grievance remedy sought by
Local 139, reflects a failure to recognize the obvious:
that Local 139 is pursuing an alternative to claiming the
work, not merely a disguised claim for the work. The
grievance itself makes that clear, by forsaking reassign-
ment of the work as a remedy. That, all other things be-
ing equal, Local 139 might well have preferred reas-
signment, and that it might argue its entitlement to the
work if, over its objections, a 10(k) proceeding moves
forward, does not alter the nature of its grievance.
Given the fundamental difference in the nature of the
relief sought in this case and in Super Excavators I, that
earlier case is distinguishable and does not control the
outcome here. Moreover, in Super Excavators I, the true
objective of the grievance was revealed in the accompa-
nying cover letter, where the Local 139 business repre-
sentative acknowledged that the Union would prefer to
have the assignment given to one of its own unit mem-
bers. There is no such admission in this case. To the
contrary, Operating Engineers Local 139 representatives
have repeatedly asserted that it is not seeking a reas-
signment of the work, and there is no inconsistent evi-
dence. Absent any evidence that Local 139 was actually
seeking relief that was neither set forth in its grievances
nor communicated in any other way, I would find that it
has not made a claim for the underground backhoe work
for employees it represents.
Accordingly, I would grant Operating Engineers Local
139’s motion to quash.