Hod Carriers' Union Local 116

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hod Carriers' Union Local No. 116, Laborers' Interna- tional Union of North America, AFL-CIO, and E. & S. Masonry, Inc., and Operating Engineers Local No. 3, International Union of Operating Engineers, AFL-CIO. Case 20-CD-291 December 24, 1970 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by E. & S. Masonry, Inc., alleging in substance that Hod Carriers' Union Local No. 116, Laborers' International Union of North America, AFL-CIO, herein called Hod Carriers, has violated Section 8(b)(4)(D) of the Act. Upon appropriate motion, Operating Engineers Local No. 3, Interna- tional Union of Operating Engineers, AFL-CIO (Party to Dispute), herein called Operating Engineers, and California Conference of Mason Contractor Associations, Inc., were permitted to intervene in this proceeding. A hearing was held before Hearing Officer David J. Salniker, on June 18, 1970. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by all parties, with E. & S. Masonry, Inc., and (Intervenor) California Conference of Mason Contractor Associations, Inc., submitting a joint brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that E. & S. Masonry, Inc., a California corporation with a principal place of business in Alameda County, California, is engaged in the subcontracting of masonry work; that its gross income annually exceeds $500,000; that it is a member of a multiemployer association, the Mason Contractors Association of the Greater East Bay, whose members annually purchase and receive supplies in excess of $250,000 directly from sources located outside the State of California ; and that it is represented for purposes of collective bargaining by said Association . We find that E. & S. Masonry, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Hod Carriers and Operating Engineers are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Prior to the events giving rise to the dispute herein, the Charging Party, E. & S. Masonry, Inc., entered into a contract to perform certain masonry work for the general contractor, Robert E. McKee Company, at Laney College (Peralta Junior College School District) in Oakland, California. In the performance of the masonry work E. & S. Masonry uses its own forklift and a tusky hoist. The forklift is used periodically throughout the workday to transport brick and other materials from a stockpile to the specific areas where the bricklayers are working. Its actual running time during an average day is approximately 1 hour. The tusky hoist is a semistationary tower with a motor-driven platform that moves up and down to predesignated stopping points and is activated by pulling a cable. It is used to transport primarily mortar, and secondarily other masonry supplies, from one height to another. Like the forklift it is utilized infrequently, though periodi- cally, during the day. Its total running time is approximately 1 hour per day. The work in question commenced in March 1969 and at all times thereafter E. & S. Masonry assigned the operation of this equipment to its employees who are represented by the Hod Carriers. The assignment was made pursuant to an agreement dated July 1, 1967, between the Hod Carriers and the Mason Contractors Association of the Greater East Bay. In April 1969 a representative of the Operating Engineers approached the Employer and demanded that the operation of the two pieces of equipment be awarded to employees represented by said Union. Repeated requests that E. & S. Masonry sign a contract with the Operating Engineers were rejected on the grounds that the Company already had a contract with the Hod Carriers. Also in April 1969 the Operating Engineers advised the general contractor, McKee Company, with whom they had a collective-bargaining agreement, that it 187 NLRB No. 81 HOD CARRIERS' UNION LOCAL 116 would require that company "to make whole," pursuant to that agreement, any of its members who may have lost employment as a result of E. & S. Masonry's use of individuals represented by the Hod Carriers in the performance of the disputed work. Subsequently, in October 1969 Operating Engineers demanded the payment of $8,000 which McKee Company, in turn, withheld from amounts due E. & S. Masonry. When Elwood Smith, principal owner of E. & S. Masonry, informed Luther Coree, business agent of the Hod Carriers, of the Operating Engineers de- mands, Coree responded that if the work were reassigned to the operating engineers, the Hod Carriers would walk off the job. E. & S. Masonry was also advised that the Union would have no trouble obtaining strike sanction on this matter. The prospect of sanctions was confirmed in a subsequent conversa- tion between Smith and Lamar Childress, secretary of the Building Construction Trades Council of Alame- da County. The strike warning was repeated in a letter from the Hod Carriers to E. & S. Masonry dated October 31, 1969. The Employer did not reassign the disputed work. B. The Work in Dispute The work here in dispute involves the operation of the forklift and the tusky hoist used by E. & S. Masonry, Inc., at the Laney College jobsite in Oakland, California. C. Contentions of the Parties E. & S. Masonry and California Conference of Mason Contractor Associations, Inc., herein called California Conference, contend that assignment of the disputed work to employees represented by the Hod Carriers is required by the terms of the agreement between Mason Contractors Association of the Greater East Bay (which is part of the California Conference) and the Hod Carriers, to which agreement E. & S. Masonry is bound. E. & S. Masonry also contends , among other things , that its work assignment is consistent with industry and area practice and is further supported by considerations of efficiency and economy . It also asserts that it is not a party to any agreement providing for voluntary adjustment of the dispute in question. The position of the Hod Carriers accords with that of the Employer. In its brief, the Operating Engineers argues that the matter before us is not a jurisdictional dispute and, accordingly , that the Board is without jurisdiction to make an assignment of the work in question. I Whatever claim may have been made to the contrary was abandoned by the Operating Engineers in its brief to the Board upon conclusion of the 483 Specifically, the Operating Engineers denies that E. & S. Masonry, the Charging Party herein, is a neutral enmeshed in a dispute not of its own making. Its position is that by filing charges against the Hod Carriers, which represents the employees who have been assigned the disputed work, in the absence of a stated intention to reassign the work in question to the Operating Engineers, E. & S. Masonry has become involved in a joint effort with the Hod Carriers to enforce the latter's contract. It is the view of the Operating Engineers that, in the circumstances of this case, only it could have engaged in conduct potential- ly violative of Section 8(b)(4)(D) of the Act. D. Applicability of the Statute Before the Board may proceed with a determination of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The record shows that the Respondent Union on two occasions warned the Employer that the Hod Carvers would strike if the disputed work were reassigned to the Operating Engineers. The Operating Engineers urges that there is insuffi- cient evidence of unlawful conduct. We disagree and find reason to believe that a violation of Section 8(b)(4)(D) may have occurred. It would serve no useful purpose to ignore the incidents described above and by so doing avoid our responsibility to determine the underlying dispute. Only by making an affirma- tive award of the work here in issue can we reduce the likelihood of unlawful conduct and thereby promote stability in labor relations. Moreover, nothing in the Act warrants the with- holding of the Board's processes from employers who may be coerced by the conduct of one of the competing groups of employees merely because the alleged unlawful conduct is engaged in by the group which momentarily enjoys the coveted assignment. The fact remains that both groups persist in laying claim to the disputed work. Based upon the foregoing, and in the absence of any claim that there exists an agreed-upon method for the adjustment of this dispute,' we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. E. The Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. As the Board has stated, its determination in a hearing held herein 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jurisdictional dispute case is an act of judgment based upon commonsense and experience in the weighing of these factors. The following factors are relevant in making a determination of the dispute before us.2 1. Collective-bargaining agreement The Employer operates under a contract with Hod Carriers which requires that it assign the work of operating forklifts and tusky hoists to employees represented by the Hod Carriers.3 It has no contract with the Operating Engineers and employs no operating engineers. 2. Company practice The past and present practice is to assign the operation of both the forklifts and the tusky hoists to its employees who are represented by the Hod Carriers. 3. Industry and area practice Considerable testimony was taken regarding the practice of other mason subcontractors in the Bay Area and on the West Coast. With only one or two exceptions, masonry subcontractors in this region have assigned the manning of forklifts and hoists to employees represented by the Hod Carriers.4 4. Efficiency and economy The record shows that the equipment here involved is not in continuous operation at the jobsite and that each is used on an average of no more than 1-1/2 hours per day. If individuals represented by the Operating Engineers operated this equipment they would be unable to perform other work when the equipment is idle. Employees represented by the Hod Carriers, on the other hand, can be and are used to perform other work during such periods of idleness. It is clear from the foregoing that assignment of the work in question to individuals represented by the Operating Engineers would increase costs without increasing efficiency. 2 Another factor normally considered relevant is the skills involved for the performance of the disputed work . In the instant case the record shows that inasmuch as the machines in question do not require special skills to operate, individuals represented by the Hod Carriers and others represented by the Operating Engineers are equally qualified for the work 3 Article II, section 2, of this contract, between the Hod Carvers and Mason Contractors Association of the Greater East Bay, states in pertinent part Work Covered. This Agreement shall cover all work coming within the jurisdiction of the Union Without limiting the scope of the work covered hereby, it is agreed that the work shall include , but not be limited to, making mix, preparing, tempering and conveying all Conclusions Based upon the entire record, and after full consideration of all relevant factors, we find that these factors favor the assignment of the disputed work to the employees represented by the Hod Carriers and conclude that these employees are entitled to perform the work here in dispute. Scope of the Award E. & S. Masonry requests a broad order on behalf of all the members of the Mason Contractors Association or, alternatively, on behalf of "all jobs in the state of [California ] on which similar disputes may arise involving the contractor or any member of the contractor association." However, the record before us does not indicate that the work in dispute has been a recurring source of controversy in the Greater East Bay Area or that other similar disputes may occur in the future. Therefore, we shall restrict the scope of our determination herein to the specific jobs that gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute. 1. Employees employed as hod carriers by E. & S. Masonry, Inc., currently represented by Hod Carriers' Union Local No. 116, Laborers' International Union of North America, AFL-CIO, are entitled to perform the work of operating the forklift and the tusky hoist on the Laney College jobsite (Peralta Junior College School District) in Oakland, Alameda County, California. 2. Operating Engineers Local No. 3, International Union of Operating Engineers, AFL-CIO, is not and has not been entitled to perform said disputed work. materials used by brickmasons, stonemasons and tuck pointers, whether done by hand or machine. All mechanical equipment replacing in whole or in part the work of Hod Carriers shall be cleaned and operated by Had Carriers This includes mixers, grout pumps, wheelbarrows, forklifts, boom winches, tusky hoists, etc The Employer signatory hereto, agrees to hire personnel in accordance with Article III to perform this work . (Emphasis supplied.] Since the testimony was conclusive on this aspect, we do not find it necessary to determine whether the questionnaires on this subject distnbuted by the California Conference were properly rejected as hearsay by the Hearing Officer