Laborers Local 860 (Anthony Allega Cement Contractor)

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 358 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
Laborers’ International Union of North America,
AFL–CIO, Local Union 860 and Anthony Allega
Cement Contractor, Inc. Case 8–CD–480
September 28, 2001
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
The original charge in this Section 10(k) proceeding
was filed April 5, 2001, by Anthony Allega Cement Con-
tractor, Inc. (the Employer), and an amended charge was
filed on April 27, 2001, alleging that the Respondent,
Laborers’ International Union of North America, AFL–
CIO, Local Union No. 860 (Laborers or Local 860), vio-
lated Section 8(b)(4)(D) of the National Labor Relations
Act by engaging in proscribed activity with an object of
forcing the Employer to assign certain work to employ-
ees it represents rather than to employees represented by
International Brotherhood of Electrical Workers, Local
No. 38, AFL–CIO (Local 38). The hearing was held
May 9 and 10, 2001, before Hearing Officer Karen N.
Neilsen.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error.1 On the entire re-
cord, the Board makes the following findings.

above.

1 Some of Local 38’s exceptions imply that the hearing officer’s rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the hearing officer’s report and the entire record,
we are satisfied that Local 38’s contentions are without merit.
In particular, we reject Local 38’s contention that the nature and ex-
tent of the hearing officer’s examination of its sole witness, Richard
Newcomer, is evidence of bias on her part. Sec. 10210.5 of the Board’s
Casehandling Manual provides that, in conducting a 10(k) hearing, “the
hearing officer should see that the Board gets a complete record,
including evidence as to whether there exists reasonable cause to be-
lieve that the respondent has violated Section 8(b)(4)(D) of the Act.”
We are satisfied that the hearing officer’s questions were within the
scope of her responsibilities as set forth
Local 38 additionally asserts that the notice of hearing should be
quashed because the Region erred in failing to serve it with a copy of
the original charge in this case and in its scheduling of the hearing.
There is no evidence that Local 38 was served with a copy of the origi-
nal charge, which was filed on April 5, 2001 (Local 38 is a party in
interest in this proceeding and was not the charged party). However, the
Region did serve Local 38, on April 20, 2001, with a notice of hearing
scheduling a 10(k) hearing for May 1, 2001. Thereafter, an amended
charge was filed on April 27, 2001, and served the same day on Local
38 by regular mail. A notice of hearing also served on April 27 set the
date for the 10(k) hearing as May 3, 2001. When Local 38 complained
that the Region had failed to provide the required 10-day period be-
tween the date of the charge and the date of the hearing, the hearing
was rescheduled to May 9, 2001.
It is evident from the foregoing that Local 38 was timely served with
a copy of the amended charge and that the 10(k) hearing ultimately was
scheduled with sufficient notice. Local 38 has failed to show that it was
prejudiced in any way by the apparent failure to serve it with a copy of
the original charge, or by the Region’s having at one point in this pro-
ceeding scheduled the hearing for May 3. Although counsel for Local
38 avers that he had advised the Region that he would be unavailable
on May 9 prior to the Region’s scheduling the hearing for that date,
there is no evidence that he filed a motion to postpone the hearing or
that Local 38 was prejudiced by the date selected. Moreover, Local
38’s counsel attended and participated fully in the hearing. For all of
the foregoing reasons, we deny the motion to quash the notice of hear-
ing.
I. JURISDICTION
The Employer, an Ohio corporation with an office and
place of business in Valley View, Ohio, is engaged in
highway and heavy utility construction. During the pre-
ceding 12-month period, the Employer, in conducting its
business, performed services valued in excess of $50,000
in States other than the State of Ohio. We find that the
Employer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that Local 860 and
Local 38 are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In August 2000, the City of Cleveland, Ohio, through
its Port Authority, solicited bids for the construction of a
new runway (5L–23R) at Cleveland Hopkins Interna-
tional Airport (CHIA) together with the construction of
electrical volt buildings, new storm and sewage systems,
and for the relocation of Brookpark Road. The project
involves, among other things, the construction and instal-
lation of underground duct banks and manholes. Duct
banks are groups of conduits, typically made of polyvi-
nyl chloride (PVC), which are laid together and through
which electrical, fiber optic, and other communication
wires or cables are run. The installation of duct banks
begins with the excavation of a trench 7–9 feet below
grade. The duct banks are assembled above ground in 20-
foot lengths by joining together the PVC pipes into plas-
tic grids called “spacers,” which keep the conduit evenly
and sequentially spaced. The assembled lengths of duct
bank are placed into the trench using a backhoe and are
then glued together. At periodic intervals, duct bank runs
connect to an underground manhole, which provides ac-
cess to the wires and cables. As the duct bank is assem-
bled, it is encased in concrete and the trench is backfilled
with surface dirt.
After several thousand feet of duct bank is laid and the
trench has been backfilled, a steel sleeve or liner is sent
through each pipe in the duct bank in a process called
“rodding” or “proofing.” This ensures that the duct banks
are true and straight. A pull rope is then blown through

336 NLRB No. 28
LABORERS LOCAL 860 (ANTHONY ALLEGA CEMENT CONTRACTOR) 359
each pipe from one manhole to the next. The pull rope is
used to pull the wire and cabling through.
The Runway 5L–23R project also involves the installa-
tion of runway lights, which are powered by electrical
wires run through conduit laid in underground trenches.
These trenches are shallower than those used for duct
banks and are interspersed with “handholes” rather than
manholes. The conduit involved consists of single or
double lengths of pipe laid directly in the ground without
the use of spacers. These lines are connected to cans
which house the individual runway lights.
On about August 5, 2000, the Cleveland Electrical La-
bor Management Cooperation Committee (LMCC)2 sent
letters to each general contractor bidding on the Runway
5L–23R project which stated the following:

On behalf of the Electrical Construction Industry, we
want to insure that the electrical work to be performed
at Cleveland Hopkins International Airport will be ac-
complished by proper assignment and with the pay-
ment of prevailing wages for all work so assigned (See
attached sheet for the prevailing wage of electricians in
Cuyahoga County). Work should include, but not be
limited to, Electrical Conduits, Duct banks, manholes,
and should closely follow Part C—Supplemental Gen-
eral Condition (Page C.23 of 53 Attached). The Con-
tractors shall assign work based solely in accordance
with the local customs, rules, and jurisdictional awards.

This letter was signed by Local 38 Business Manager
Salvatore (Sam) Chilia and Cleveland NECA Executive
Director R. L. Newcomer, with their respective titles.
On August 17, 2000, Local 38, by its legal counsel,
wrote to the city of Cleveland purchasing department to
protest the city’s failure to affirmatively state whether
bidders on the Runway 5L–23R project were required to
pay the electricians’ prevailing wage rate for duct bank
work. Local 38 threatened to take legal action if the work
was awarded to a contractor intending to pay an “incor-
rect rate.”
On November 17, 2000, while its bid was pending, the
Employer wrote to Local 860 to advise it that when it
was awarded the Runway 5L–23R project, it would
“award all labor work to Laborers Local 860” including
but not limited to “the construction and installation of
electrical conduit, duct bank systems and electrical man-
holes.” In contrast, the Employer assigned the following

2 LMCC is a nonprofit Ohio corporation organized as a labor-
management cooperation committee under the authority of Sec.
302(c)(9) of the Labor Management Relations Act, 29 U.S.C. §
186(c)(9), with a board of trustees composed of an equal number of
representatives of Greater Cleveland Chapter National Electrical Con-
tractors’ Association (Cleveland NECA) and Local 38.
work to electrical contractors: the pulling of electrical
cable through the pipes in the duct banks, the actual elec-
trical hookups of all cables, and the laying of single and
double conduit lines and attendant can connections for
the runway lights.
On December 11, 2000, Local 38 wrote to the city of
Cleveland Port Authority to reiterate its position that the
electrician prevailing wage rate should be used for the
work of installing underground conduit and setting man-
holes. The letter further stated that “IBEW Local 38 elec-
tricians have customarily installed the work in question
and there is no doubt should be awarded the work on
runway 5L–23R.”
On February 24, 2001,3 the Employer was notified that
it had been selected by the Port Authority as the success-
ful bidder on the Runway 5L–23R project. The total
value of the contract exceeds $120 million. On March
14, the Cleveland City Council enacted Ordinance No.
454–01 which, inter alia, required the Port Authority to
ensure that “all electrical work, including but not limited
to duct bank and manhole placement and/or construction,
to be performed on the runway [5L–23R] construction
project . . . is done by licensed, registered electrical con-
tractors . . . and that the wages to be paid . . . shall be
established at the applicable electrician prevailing wage
rate.”4
In response to these events, by letter dated March 19,
the Employer confirmed in writing a prior offer to re-
place two Local 860 employees “with two (2) Local 38
electricians. . . . The only work to be performed by these
two electricians is to glue and connect together the duct
bank.” On April 2, the Employer wrote to Local 860 to
advise them of the compromise offer to displace two
Laborers with two Local 38 electricians. Local 860 re-
sponded by letter, also dated April 2, restating its claim
to the duct bank and manhole placement work. The letter
also stated that “You are advised that Laborers Local 860
intend [sic] to exercise any and all legal means necessary
to preserve its proper work jurisdiction at the Cleveland
Hopkins International Airport project, including, if nec-
essary, picketing, concerted and protected job slowdown,
and striking.”
At the request of the city of Cleveland, representatives
of Local 38, Local 860, the Employer, and the city met
with a mediator in mid-April in an effort to resolve the
dispute. The mediator asked if the parties would agree at
that time to go back to the earlier proposal of two electri-
cians to replace two laborers as the basis for a settlement.
3 Unless otherwise noted, all dates hereafter are in 2001.
4 At the time of the hearing in this case, the ordinance had been re-
pealed by the Cleveland City Council.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
Although the Employer agreed, neither of the two unions
accepted the proposal.
On about April 23, Local 38 Business Manager Chilia
telephoned John Allega, the Employer’s president con-
cerning the use of electricians on the Runway 5L–23R
project. Allega testified that Chilia “asked couldn’t we
resolve this problem, couldn’t he get his people working
out here and do this work.”5 Allega refused, stating that
the matter was now “out of his hands” because he had
filed a charge with the Board.
On April 25, Local 38 Business Manager Walter
O’Malley filed a taxpayer lawsuit in his own name
against the city of Cleveland, seeking to enforce Ordi-
nance No. 454–01 by, inter alia, requiring the city to
“immediately utilize electricians and electrical contrac-
tors to perform all electrical duct bank and manhole han-
dling, assembly, and installation work on the CHA Run-
way Expansion Project.” At the time of the hearing in
this case, the lawsuit was still pending.
B. Work in Dispute
The disputed work involves duct bank and manhole
placement and/or construction to be performed on the
Runway 5L–23R construction project at Cleveland Hop-
kins International Airport.6
C. Contentions of the Parties
Local 38 contends that there is no jurisdictional dis-
pute here because it did not make a claim to the work in
question. To the extent that the Employer is required by
the city of Cleveland to utilize an electrical contractor to
perform the disputed work, Local 38 contends that its

5 On cross-examination, Allega was asked about the conversation
and testified as follows:
Q. Okay. But during that conversation, other than talking
about the interpretation of the ordinance and the conversations
and mediation and settlement presses [sic] that went on with At-
torney Garafoli, at any time did Mr. Chilia say to you, “Mr. Al-
lega assigned that work to us, the electricians?” He never said
that, did he?
A. He never said assign the work to them, no.
6 Local 38 refused to stipulate to a description of the work in dispute
on the grounds that there was no work in dispute. Near the end of the
hearing, the Employer and Local 860 stipulated that the work in dispute
was the following:
The unloading, stockpiling, and inventorying of all conduit, man-
holes, and handholes; the construction, placement, and assem-
bling of all duct banks, manholes, and handholes; the encasement
and backfilling of all duct banks, single and double conduit, man-
holes, and handholes; the rodding and proofing of all duct banks;
and the installation of pull ropes through all duct banks.
We find that this stipulation does not accurately describe the work in dispute
as there is no evidence that IBEW Local 38 has disputed the assignment of
work other than duct bank and manhole placement and/or construction as
described above. Accordingly, we shall rely upon the description of the
work in dispute stated in the notice of hearing, which is set forth above. See
Iron Workers Local 433 (Crescent Corp.), 277 NLRB 670, 672–673 (1985).
efforts to insure compliance with those requirements are
not cognizable competing claims but are instead owner’s
requirements which the Board is without authority to
review.7 Local 38 also argues, in effect, that the LMCC
letter and the O’Malley lawsuit do not establish the exis-
tence of a cognizable competing claim because there is
no basis for attributing them to the Union. Finally, Local
38 asserts that the notice of hearing should be quashed
because there is no evidence that Local 860 has threat-
ened to use proscribed means to enforce its claim to the
disputed work.8
The Employer and Local 860 contend that a jurisdic-
tional dispute exists, based on both unions’ claims to the
work and the Laborers’ threat to strike in support of its
claim. They assert that Local 38 has engaged in a long-
standing campaign to obtain the duct bank work for its
members, including demands for the same work on prior
CHIA projects. Although recognizing that some of Local
38’s demands for the work were addressed to the city of
Cleveland, they argue that “a dispute cognizable under
Section 8(b)(4)(D) may exist even though no demand has
been addressed to the employer whose employees are
performing the work.”9 They further assert that Capitol
Drilling is distinguishable because in this case Local 38
has sought the assignment of the disputed work to em-
ployees it represents in addition to any claims it may
have against the city of Cleveland.10 In particular, they
note that Local 38, through its business agent, Sam
Chilia, directly sought assignment of the disputed work
in a phone call to Allega on about April 23.
The Employer and Local 860 further assert that an
award in favor of employees represented by Local 860 is
justified by Local 860’s collective-bargaining agreement,
employer preference, past practice and area practice,
skills and training, and economy and efficiency of opera-
tions.
D. Applicability of the Statute
In a proceeding under Section 10(k) of the Act, “the
Board carries out its mandate of protecting employers and
the public from the detrimental economic impact of juris-
).
7 Local 38 cites Laborers (Capitol Drilling Supplies), 318 NLRB
809 (1995) (union’s efforts to enforce lawful union signatory subcon-
tracting clause against general contractor does not, without more, con-
stitute a claim to the work being performed by a subcontractor’s
employees
8 Local 38 presented no evidence concerning the merits of this dis-
pute.
9 Longshoremen ILWU Locals 8 & 40 (Port of Portland), 233 NLRB
459, 461 (1977) (union’s demands for assignment of disputed work
made to port authority, rather than to employer performing work at port
sufficient to establish competing claim).
10 The Employer additionally contends that Capitol Drilling was
wrongly decided and should be overruled.
LABORERS LOCAL 860 (ANTHONY ALLEGA CEMENT CONTRACTOR) 361
dictional disputes by assuring, to the extent possible, a
permanent resolution of those disputes.”11 It is well settled
that the standard in a 10(k) proceeding is whether there is
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. It requires a finding that there is reasonable
cause to believe that a party has used proscribed means to
enforce its claim to the work in dispute, that there are
competing claims to the disputed work between rival
groups of employees, and that no method for the voluntary
adjustment of the dispute has been agreed on.12
The parties have stipulated that there is no agreed-upon
method to adjust the dispute voluntarily. The record fur-
ther establishes that Laborers Local 860 threatened the
Employer with picketing and striking if the disputed work
was assigned to employees represented by IBEW Local
38. As noted above, Laborers Local 860 threatened, in its
April 2 letter to the Employer, “to exercise any and all
legal means necessary to preserve its proper work jurisdic-
tion at the Cleveland Hopkins International Airport pro-
ject, including, if necessary, picketing, concerted and pro-
tected job slowdown, and striking.”
IBEW Local 38 contends that the Laborers’ threat was a
sham because the Laborers only threatened to use “legal
means” and because the Laborers’ collective-bargaining
agreement contained a no-strike clause. There is no merit
to these contentions. It is well settled that a threat to en-
gage in a jurisdictional strike is not negated by the exis-
tence of a no-strike clause in an applicable collective-
bargaining agreement.13 Moreover, a threat to engage in
concerted or other activity to force or require an employer
to reassign disputed work violates Section 8(b)(4)(D).14
The Laborers’ characterization of its threat as involving
“legal means” therefore does not affect our finding that
there is reasonable cause to believe that the Laborers has
threatened the Employer with picketing and/or a strike if
the disputed work is reassigned.
We also reject Local 38’s further contention that there
are no competing claims to the work because it has never
made any demand upon Allega for any assignment of
work. Local 38’s December 11, 2000 letter, to the Cleve-
land Port Authority asserting, inter alia, that “IBEW Local
38 electricians have customarily installed the work in
question and there is no doubt should be awarded the work
on runway 5L–23R,” and Chilia’s April 23 request
“couldn’t we resolve this problem, couldn’t he get his

11 Operating Engineers Local 150 (Austin Co.), 296 NLRB 938, 941
(1989).
12 Glass Workers (Olympian Precast, Inc.), 333 NLRB 92, 95
(2001).
13 Teamsters Local 6 (Anheuser-Busch), 270 NLRB 219, 220 (1984).
14 Brockton Newspaper Guild (Enterprise Publishing), 275 NLRB
135, 136 (1985).
people working out here and do this work” establish rea-
sonable cause to believe that there are competing claims to
the disputed work.15 Contrary to Local 38, its December
11, 2000 letter, constitutes a claim for the work even
though it was not directed at the Employer.16 Moreover,
Chilia’s April request for the reassignment of the disputed
work to Local 38 electricians, which was made directly to
Allega, further establishes the existence of competing
claims.17
15 We find it unnecessary to pass on whether the remaining acts and
conduct on the part of Local 38, cited by the Employer and Local 860,
also constituted cognizable claims for the disputed work.
16 See, e.g., Port of Portland, 233 NLRB, supra, at 461.
The December 11 letter was introduced into evidence by the Em-
ployer as an attachment to the verified complaint filed by Local 38
Business Manager O’Malley in his taxpayer lawsuit described above,
over the objection of Local 38’s counsel, who asserted that the com-
plaint and its attachments had not been properly authenticated. In its
brief, Local 38 renews its objection to the admission into the record of
these documents. These contentions are without merit.
Federal Rule of Evidence 902 provides, in pertinent part, that “Ex-
trinsic evidence of authenticity as a condition precedent to admissibility
is not required with respect to the following: (1) Domestic public
documents under seal. A document bearing a seal purporting to be that
of the United States, or of any State, . . . or of a political subdivision,
department, officer, or agency thereof, and a signature purporting to be
an attestation or execution.” The O’Malley complaint is stamped with
the seal of the clerk of the Cuyahoga County Court of Common Pleas
and contains the attesting signature of a deputy clerk certifying that the
document is a true copy of the complaint filed in O’Malley v. White,
Case 436947. The complaint includes an averment that the December
11 letter was sent by O’Malley to the Port Authority’s executive direc-
tor, Rueben Sheperd. Attached to the complaint is a notarized verifica-
tion by O’Malley that the allegations in the complaint are “true and
accurate to the best of his knowledge.” The attorney who filed the
O’Malley lawsuit also represents Local 38 in this proceeding and ap-
peared on Local 38’s behalf at the hearing. We find that the O’Malley
complaint and its attachments were properly admitted into evidence.
17 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). Accordingly, Allega’s testimony concerning this
conversation establishes reasonable cause to believe that the statute has
been violated, and his somewhat confusing testimony on cross-
examination does not prevent the Board from proceeding under Sec.
10(k).
We also reject Local 38’s contention that evidence concerning this
conversation was inadmissible under Fed.R.Evid. 408 as evidence
regarding settlement discussions. Rule 408 generally precludes the
admission of an offer to settle a disputed claim, or evidence of conduct
or statement made during settlement discussions, to prove liability for
or invalidity of the claim being settled or its amount. Local 38 asserts
that this conversation should be regarded as settlement discussion be-
cause it purportedly was part of the mediation process conducted in a
lawsuit Local 38 Business Representative O’Malley filed against the
city of Cleveland to enforce a city ordinance concerning duct banks and
manhole construction at the airport. O’Malley filed his action as a
taxpayer, however, and not in his capacity as a Local 38 representative.
Thus, given that Local 38 was not a party to that action, it could not
have been participating as a party in any mediation of the lawsuit.
Furthermore, Local 38 has consistently taken the position that it has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362
Capitol Drilling,18 cited by Local 38, is inapplicable to
this case. In Capitol Drilling, the Board held that a union’s
action through a grievance procedure to enforce an argua-
bly meritorious claim against a general contractor for
breach of a lawful union signatory clause does not, without
more, constitute a claim to the work being performed by a
subcontractor’s employees. The Board relied on the fact
that there were two disputes in that case, one regarding the
actions of the general contractor, and one involving the
actions of the subcontractor who ultimately had assigned
the work to a specific group of employees. The Board
quashed the notice of 10(k) hearing, noting that the union
which had filed the grievance against the general contrac-
tor on a contractual issue had not thereby made a compet-
ing claim directed at the subcontractor. Id. at 810–811 fn.
4. Here, there is only one employer involved and Local 38
and Local 860 have each attempted to establish a claim to
the disputed work assigned by that employer.19
In light of the foregoing, we find reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has occurred
and that there exists no agreed-upon method for voluntary
adjustment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirmative
award of disputed work after considering various factors.
NLRB v. Electrical Workers Local 1212 (Columbia
Broadcasting), 364 U.S. 573 (1961). The Board has held

never made a competing claim for the work, and that there is “no dis-
pute even ripe for NLRB consideration.” Therefore Local 38 cannot
assert that Business Manager Chilia’s telephone conversation with John
Allega was part of an effort to settle a dispute before the Board. Ac-
cordingly, we find that the conversation was not part of a settlement
discussion, and therefore admission of evidence concerning this con-
versation is not precluded by Rule 408.
18 Supra, 318 NLRB 809.
19 See Laborers Local 113 (Super Excavators), 327 NLRB 113,
114–115 fn. 6 (1998).
Chairman Hurtgen has previously stated his reservations regarding
the Board’s holding in Capitol Drilling. See, e.g., his concurring opin-
ion in Laborers Local 113 (Super Excavators), 327 NLRB, supra at
116. However, inasmuch as the instant case is distinguishable from
Capitol Drilling, it is unnecessary for him to pass on the Board’s hold-
ing in Capitol Drilling.
Member Truesdale notes that he dissented in Capitol Drilling. See
318 NLRB at 812–813. He agrees with his colleagues, however, that
the circumstances of this case are distinguishable and that the holding
from which he dissented in Capitol Drilling is not applicable here. See
Glass Workers (Olympian Precast, Inc.), 333 NLRB 92, fn. 4 (2001).
Member Walsh does not pass on the applicability of Capitol Drill-
ing, as he does not rely on Local 38’s letter to the Cleveland Port Au-
thority to establish reasonable cause. He relies only on the April 23
conversation between Local 38 Business Manager Chilia and the presi-
dent of Allega, which in his view is sufficient to establish reasonable
cause to believe that Local 38 made a claim to the work in dispute.
that its determination in a jurisdictional dispute is an act of
judgment based on common sense and experience, 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 deter-
mination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certifications con-
cerning the employees involved in this dispute.
The Employer has adopted the terms and conditions of
employment set forth in the 1989–1992 Ohio Highway-
Heavy Municipal and Utility Construction State Agree-
ment negotiated between Laborers District Council of
Ohio and the Ohio Contractors Association Labor Rela-
tions Division, and any successor agreement. Article I of
the most recent agreement, which is effective by its terms
from May 1, 1999, to May 1, 2001, provides that it shall
cover, inter alia, “Airport Construction” and “Sewer, Wa-
terworks and Utility Construction.” “Airport Construc-
tion” is defined in article II as “including site preparation,
grading, paving, drainage, fences, runway lighting, drive-
ways, parking areas, and similar work incidental to the
construction of airfields.” “Sewer, Waterworks and Utility
Construction” is defined in article II as “including con-
struction of all . . . telephone and television conduit, un-
derground electrical lines, and similar utility construction.”
Exhibit A of the agreement further recognizes the jurisdic-
tion of the Laborers as including, and requires the assign-
ment of all work to Laborers-represented employees which
involves, inter alia, “Cutting of streets and ways for laying
of conduits for all purposes, digging of trenches, man-
holes, etc., handling and conveying all materials for same,
concreting of same, backfilling, grading and resurfacing of
same and all other semi- and unskilled labor connected
therewith.” There was no evidence presented, in contrast,
that the Employer has a collective-bargaining agreement
with Local 38 covering the disputed work. The factor of
collective-bargaining agreements accordingly favors an
award of the disputed work to employees represented by
Laborers Local 860.
2. Employer preference and current assignment
The Employer assigned the disputed work to employees
represented by Laborers and prefers that the work in dis-
pute continue to be performed by employees represented
by the Laborers. Accordingly, this factor favors an award
of the disputed work to employees represented by Local
860.
3. Area and industry practice
The evidence presented indicates that the Employer has
consistently assigned the disputed work to employees rep-
LABORERS LOCAL 860 (ANTHONY ALLEGA CEMENT CONTRACTOR) 363
resented by the Laborers in prior projects. Further, there is
an unbroken area practice of Laborers performing the dis-
puted work at CHIA in the past. Other employers, includ-
ing Omni Electric, have also used employees represented
by Laborers to perform duct bank and manhole work on
projects at CHIA and other airports.20 Accordingly, this
factor favors an award of the disputed work to employees
represented by Local 860.
4. Relative skills and training
Employees represented by Local 860 receive extensive
training in soil classification and excavation safety, includ-
ing training in confined space work required by OSHA for
employees working in trenches. The evidence shows that
employees represented by Local 860 are fully qualified by
training or experience to perform the disputed work and
have performed the work without difficulty in the past.
There is no record evidence indicating whether employees
represented by Local 38 have the specific skills and train-
ing required to perform the disputed work. Accordingly,
this factor favors an award of the disputed work to em-
ployees represented by Local 860.
5. Economy and efficiency of operations
The Employer performs the installation of duct bank
and manholes using employees represented by Operating
Engineers Local 18 (Operating Engineers) to dig the re-
quired trenches using excavating equipment, while em-
ployees represented by Local 860 prepare the trench and
assemble the duct bank into 20-foot sections. The duct
bank sections are then placed in the trenches using a back-
hoe manned by employees represented by the Operating
Engineers, who also place manholes in the trench. Em-
ployees represented by Local 860 then assemble the duct
bank into continuous runs and, in conjunction with em-
ployees represented by the Cement Finishers, pour con-
crete into the trench in order to fully encase the duct
banks.21 The trenches are then backfilled with surface dirt
by employees represented by the Operating Engineers
using backhoes and proofed by employees represented by
Local 860. Thereafter, electricians pull the cable through
the pipes in the duct banks and perform the actual electri-
cal hookups of all cables. However, the Employer does not
directly employ electricians on its construction projects.
Rather, when electricians are utilized, they are employed
by electrical subcontractors. Because Local 38 only seeks
a portion of the work involved in assembling and installing

20 See also Electrical Workers Local 9 (Omni Electric), 308 NLRB
513 (1992) (installation of highway lighting system including concrete
work, underground electrical lines, and conduit, awarded to employees
represented by Laborers).
21 An employee represented by Local 860 operates a “vibrator” in
the trench to ensure that the concrete pours properly.
duct bank and manholes, assignment of the disputed work
to employees represented by Local 38 would require the
Employer to use a composite or mixed crew to perform
work currently performed by employees represented by
Local 860.
The Employer and Local 860 argue that it is more eco-
nomical to use employees represented by Local 860 be-
cause they are paid less than employees represented by
Local 38. The Board does not consider wage differentials
as a basis for awarding disputed work.22 We therefore do
not rely on this argument in evaluating this factor.
On the basis of the foregoing facts, without reference to
wage rate differentials, we find that this factor favors
awarding the work in dispute to employees represented by
Local 860.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by Local 860 are entitled to
perform the work in dispute. We reach this conclusion
relying on the factors of collective-bargaining agreements,
employer preference, past practice and area practice, skills
and training, and economy and efficiency of operations.
In making this determination, we are awarding the work
to employees represented by Local 860, not to that Union
or its members. The determination is limited to the contro-
versy that gave rise to this proceeding.23
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Anthony Allega Cement Contractor, Inc.
represented by Laborers Local 860 are entitled to per-
form duct bank and manhole placement and/or construc-
tion to be performed on the Runway 5L–23R construc-
tion project at Cleveland Hopkins International Airport.

22 Lancaster Typographical Union No. 70 (C.J.S. Lancaster), 325
NLRB 449, 452 (1998).
23 The Employer and Local 860 have requested that the Board issue a
broad, area-wide award of the disputed work to employees represented
by the Laborers. We deny this request. Normally, 10(k) awards are
limited to the jobsite where the unlawful 8(b)(4)(D) conduct occurred
or was threatened. U.S. Information Systems, 326 NLRB, supra at 1385.
The Board will issue a broad award when the dispute is likely to recur
and when there is evidence that the union against which the broad order
will lie will engage in further unlawful conduct in order to obtain work
similar to that in dispute. Laborers Local 76 (Carlson & Co.), 286
NLRB 698, 701 (1987). We conclude that a broad order is not war-
ranted here. Local 38 did not engage in threats to picket or strike;
rather, it was Local 860 that threatened to strike and picket to maintain
assignment of the disputed work to employees it represents. Under
these circumstances, there is no basis for extending the determination
beyond the particular controversy that gave rise to the proceeding. Id.
Accord: Machinists Local 724 (Holt Cargo), 309 NLRB 377, 381
(1992), enfd. 30 F.3d 1487 (2d Cir. 1994).