International Union of Operating Engineers, Loc. 132

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 132, AFL-CIO and Val Colussi & Son, Inc. and Laborers' International Union of North America, Locals 379 and 714, AFL-CIO. International Union of Operating Engineers, Local 132 A, B & C, AFL-CIO and J. Regis Wilk, Inc. and Laborers' International Union of North Ameri- ca, Local 379, AFL-CIO. Cases 6-CD-544 and 6- CD-545 January 17, 1975 DECISION AND DETERMINATION OF DISPUTES BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Val Colussi & Son, Inc.,' and by J. Regis Wilk, Inc.,2 on September 16, 1974 ,3 alleging that International Union of Operating Engineers, Local 132, AFL-CIO, hereinafter referred to as Local 132, has violated Section 8(b)(4)(D) of the Act. Pursuant to an Order Consolidating Cases and Notice of Hearing issued on October 3, a hearing was held on October 17, at Morgantown, West Virginia, before Hearing Officer Janet G. Harper. Colussi, Wilk, Local 132, and Laborers' International Union of North America, Locals 379 and 714, hereinafter called Laborers, 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, Colussi and Local 132 filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER With respect to Colussi, the parties stipulated, and we find, that Morgantown Nursing Center, Inc., a West Virginia corporation with its principal office in Waynesburg, Pennsylvania, is engaged in the con- struction of the Morgantown Nursing Center, Maple Avenue, Morgantown, West Virginia. The value of this project is in excess of $750,000. Colussi, a Pennsylvania corporation with its principal office in Eighty Four, Pennsylvania, is engaged as a masonry contractor in the building and construction industry. Colussi is currently engaged under a contract with Morgantown Nursing Center, Inc., and the value of this contract is approximately $115,000. During the past 12-month period, a representative period, Colussi received goods valued in excess of $50,000 from points directly outside the Commonwealth of Pennsylvania for use within the Commonwealth of Pennsylvania. With respect to Wilk, the parties stipulated, and we find, that Crown American Corp. is currently engaged as a general contractor in construction of an addition to Middletown Mall, Routes 250 and 73, Fairmont, West Virginia. Wilk, a corporation with its principal office in Trafford, Pennsylvania, is engaged as a masonry contractor in the building and construction industry. Wilk is currently engaged in a contract with Crown American Corp. to do all masonry work at the Middletown Mall. During the past 12-month period, a representative period, Wilk received goods valued in excess of $50,000 from directly outside the Commonwealth of Pennsylvania for use within the Commonwealth of Pennsylvania. It is stipulated, and we find, that the Employers are engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended, 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 Local 132 and Laborers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute There are two construction sites involved herein: (1) Morgantown Nursing Center, Maple Avenue, Morgantown, West Virginia, and (2) Middletown Mall, Routes 250 and 73, Fairmont, West Virginia. As noted above, Colussi is to do all masonry work at Morgantown Nursing Center under a subcontract with Morgantown Nursing Center, Inc. Wilk is likewise to do all masonry work at Middletown Mall under a subcontract with Crown American Corp. For approximately 10 years, Colussi has been a member of a multiemployer association of masonry contractors, the Mason Contractors Association of i Hereinafter referred to as Colussi or Employer. 2 Hereinafter referred to as Wilk or Employer 216 NLRB No. 42 a All dates herein refer to 1974 unless otherwise noted. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOC. 132 America, Inc.,4 which has, since 1955, entered into successive agreements with the Laborers. Article III of the current agreement provides, inter alia, as follows: Jurisdiction. The work jurisdiction covered by this Agreement when performed by members of the ASSOCIATION ("Employer") shall include that work which has been historically or traditionally or contractually assigned to members of the LABORERS' INTERNATIONAL UNION OF NORTH america in the tending of Masons including unloading, mixing, handling, and con- veying of all materials used by Masons by any mode or method .... Wilk is not a member of any employer association nor party to any agreement with the Laborers International. Both Wilk and Colussi, however, are bound as signatory parties to a collective-bargaining agreement, dated June 1, 1973, to May 31, 1976, with the Laborers' District Council of Charleston, West Virginia, which includes Locals 379 and 714 herein. Neither Employer has a contract with Local 132 or the International Union of Operating Engineers, nor do they employ members of Local 132 at the jobsites involved. Colussi, on August 26, and Wilk, on or about September 1, brought forklifts onto their respective jobsites. The machines were to be used exclusively for the tending of masons and the handling and conveyance of materials to the masons. Based on current contracts with Laborers and on alleged past company practice in the area, each Employer assigned the operation of its forklift to its employees who were represented by Laborers, Locals 379 and 714. Within a few days of the assignment made by each employer, representatives of Local 132 demanded, in telephone conversations and in meetings at the jobsites, that the operation of the forklift be assigned to members of Local 132. The record contains unrefuted testimony that Wilson, Local 132's busi- ness agent, had conversations concerning the work in dispute with Victor Colussi, Colussi's field represent- ative, and with J. Regis Wilk, Wilk's company president, and that he raised the threat of picketing at the jobsites if the forklift assignments were not changed. Colussi and Wilk declined to change their work assignment and each continued to employ laborers in operating its forklift. On September 16, picketing was commenced by Local 132 at both jobsites. Picket signs used in each action stated that the Employers had "no contract 4 Hereinafter referred to as the MCAA. 5 Colussi filed a written brief, while Wilk relied on its testimony 229 with Local 132." The picketing continued until September 24, when Local 132 agreed to cease picketing, pending the outcome of this proceeding. The Employers have proceeded to perform the masonry work, which was estimated to be 90 percent completed at each jobsite as of the hearing date. B. The Work in Dispute The parties agree that the work in dispute involves the operation of a forklift for the sole purpose of tending masons at the Morgantown Nursing Center and Middletown Mall jobsites. It is stipulated that the forklift involved is a piece of equipment that is ridden by the operator, is gasoline or diesel powered, and lifts materials and equipment to heights- of between 28 to 35 feet. C. Contentions of the Parties The Employers assigned the work in dispute to their own employees represented by the Laborers and favor that assignment rather than one to members of Local 132. Colussi and Wilk rest their position on collective-bargaining agreements with Laborers, relative skills and work involved, economy and efficiency of operations, and alleged company, industry, and area practice.5 The Laborers position, as stated at the hearing, is that the Employers' assignment of the disputed work to employees which it represents is a proper assignment in accord with current contractual obligations and with past practice whereby laborers have traditionally been assigned the work of tending masons. Local 132 claims the disputed work , contending that the operation of all forklifts, even when used exclusively for tending masons, comes within their jurisdiction. Local 132 further contends that the Operating Engineers and the Laborers International Unions have an agreement, signed in 1954, which awards jurisdiction of the work in dispute to employees represented by Operating Engineers, and that the National Joint Board for Settlement of Jurisdictional Disputes has in the past awarded such work to Local 132. D. Applicability of the Statute Before the Board may proceed to the determina- tion of a 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, and that there is no agreed-upon method, which is presented at the hearing in which it essentially adopted Colussi 's position. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD binding on all parties, for the voluntary adjustment of the dispute. The record herein shows, and Local 132 does not deny, that representatives of Local 132 demanded assignment of the disputed work, suggested the possibility of picketing if the demanded assignment were not made, and picketed Employers' jobsites from September 16 until September 24 after the Employers continued to use employees represented by Laborers to operate forklifts in tending masons. We conclude 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 us for determination pursuant to Section 10(k) of the Act. The parties do not contend that there is any other method for adjustment of the dispute. We find this factor favors awarding the disputed work to employees represented by Laborers. 2. The Employers' assignment and past practice It is undisputed that the Employers assigned the work in dispute to employees represented by Labor- ers. The record shows that these assignments were in accord with the Employers' consistent past practice of employing Laborers to tend masons. It further appears that Colussi and Wilk have assigned laborers to operate forklifts when used exclusively for tending masons. Consequently, we find this factor favors the assignment of the disputed work to employees represented by Laborers. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after taking into account the evidence supporting the claims of the parties and balancing all relevant factors .6 The following factors are relevant in support of the contentions of the parties herein: 1. Collective-bargaining agreements Neither Laborers nor Local 132 has been certified by the Board as bargaining agent of the Employers' employees. Colussi, as a member of the MCAA, is bound to the agreement between that employer association and the Laborers International which recognized the work jurisdiction of Laborers in the "tending of Masons including . . . conveying of all materials used by Masons by any mode or method ...." Wilk and Colussi have each signed the same .collective-bargaining agreement covering members of Laborers Locals 379 and 714 who are employed by the Employers at the jobsites involved herein. Neither Employer employs members of Local 132 at these sites. Local 132 correctly noted that Laborers does not specifically refer to the job classification of "Forklift Operator," but it does specifically refer to "Brick Mason Tenders" and "Stone Mason Tend- ers." Local 132 does not have a contract with either Employer. 6 N.LR.B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573, 586 (1%1); International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Comipany) 135 NLRB 1402,1411 (1%2). s During the past 2 years, Colussi has had approximately 10 masonry contracting jobs in the area, on only 5 of which did he use a forklift. In the three instances when forklifts were used exclusively for tending masons, laborers were assigned to operate the machines ; operating engineers 3. Industry and area practice Local 132 claims that the operation of forklifts has traditionally been within its jurisdiction in the construction industry at large and in the area. It introduced testimony and a collective-bargaining agreement as evidence that other general and masonry contractors in the area specifically recog- nize the Operating Engineers claim in this respect and have employed operating engineers on forklift assignments. All parties are agreed that Local 132 has a proper claim to forklift assignments when the machines have a multipurpose use at the construction site. These facts favor Local 132. On the other hand, the Employers' representatives testified that forklifts are not customarily used in the masonry industry and that when forklifts are used exclusively in tending masons, the practice has been to assign the work to laborers.? The record did not reveal whether any of the area masonry contractors said by Local 132's representative to have employed operating engineers on forklifts made such an assignment when the forklifts were used exclusively to tend masons. Based on the entire record, this factor does not favor the employees represented by either Union and is found to be inconclusive. 4. Relative skills and work involved There is no showing that the operation of the forklift in dispute requires a degree of skills not handled the forklifts on two multipurpose assignments. In the same 2-year period , Wilk has had approximately eight or nine masonry jobs, using forklifts to tend masons at three sites . Laborers operated forklifts to tend masons on two jobs ; an operating engineer was employed for the forklift assignment in the other instance , a multipurpose operation. As to this latter job, Wilk originally assigned the work to a laborer but the general contractor changed the assignment to an operating engineer after "problems" arose. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOC. 132 possessed by laborers. That operating engineers had the requisite skills to perform the job was not questioned. Colussi and Wilk did testify, however, that the nature of the work involved in tending masons required a knowledge of materials, place- ment, and procedure with which the laborers were familiar but the operating engineers were not. We find that this factor favors awarding the disputed work to employees represented by Laborers. 5. Economy and efficiency of operations When forklifts are used by the Employers exclu- sively for tending masons, they are in actual operation for only a few hours of each workday. The Employers therefore testified that it is more efficient and economical for them to use laborers for the work in dispute for the following reasons : (1) Since the Employers use their laborer employees for work other than forklift operation, the Employers would enjoy less operational flexibility if they had to use operating engineers, who would be limited to their forklift assignment ; (3) it is necessary to assign a laborer to assist the operating engineer on the forklift in order to inform him of the materials needed in tending masons ; (3) operating engineers, who are employed on the basis of a guaranteed 8-hour workday wage, would be paid a full day's wage even if their assigned task required only 1 or 2 hours' work. We find therefore that this factor favors awarding the disputed work to employees represented by Laborers. 6. Joint Board determinations and International agreements Local 132 introduced into evidence a ruling of the National Joint Board for the Settlement of Jurisdic- tional Disputes, dated December 5-6, 1962, involving Laborers, Local 132, and a contractor and masonry subcontractor, not involved herein, at a jobsite in Wheeling, West Virginia. The Joint Board awarded operation of forklifts in this dispute to Local 132. We find that the award submitted into evidence by Respondent is neither binding on the Employers nor controlling in the instant dispute, although it repre- sents a factor tending to favor Local 132. Local 132 introduced an agreement signed by the Internationals of the Operating Engineers and the Laborers in 1954. The agreement reads in pertinent part: (1) With regard to fork lifts and other similar type of equipment, the operation of same will be by members of the International Union of Operating Engineers; a member or members of the Interna- 231 tional Hod Carriers', Building and Common Laborers' Union of America [organizational predecessor to Laborers' International Union of North America] will work in connection withsaid equipment for the purpose of seeing to it that the load is properly on the lift and to do any necessary tending in the event that part of the load spills, etc., in which event the Laborer- Tender will reset the material and will also give the necessary signals to the Engineer when the equipment is at the proper level or position; where necessary a Laborer will be on the scaffold in order to assist in the unloading of the fork lift or loader, in order that the material may be at the proper location for the use of the mechanic that shall install it. We find that the Employers are not parties to the agreement and are therefore not bound by it. In addition, we find that the agreement is not disposi- tive of the present case which involves the use of forklifts solely to tend masons and thus does not favor either party. Conclusions Upon consideration of all relevant factors, we conclude that the Employers' employees who are represented by Laborers are entitled to the disputed work based on the collective-bargaining agreements, the Employers' assignment and past practice, the relative skills and work involved, and economy and efficiency of operations. In making this determina- tion, we are assigning the work in question to employees represented by Laborers and not to Laborers or its members. This award is limited to the work in dispute in this case. DETERMINATION OF DISPUTES Pursuant to Section 10(c) 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 hereby makes the following Determination of Dis- putes: 1. Employees employed by Val Colussi & Son, Inc., as laborers and currently represented by Laborers' International Union of North America, Locals 379 and 714, AFL-CIO, are entitled to the work involving the operation of a forklift for the sole purpose of tending masons at the Morgantown Nursing Center construction site, Maple Avenue, Morgantown, West Virginia. 2. Employees employed by J. Regis Wilk, Inc., as laborers and currently represented by Laborers' 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of North America, Local 379, AFL-CIO, are entitled to the work involving the operation of a forklift for the sole purpose of tending masons at the Middletown Mall construction site, Routes 250 and 73, Fairmont, West Virginia. 3. International Union of Operating Engineers, Local 132, AFL-CIO, and International Union of Operating Engineers, Local 132 A, B & C, AFL- CIO, are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the aforesaid Employers to assign the above-described work to operating engineers who are represented by those labor organizations. 4. Within 10 days from the date of this Decision and Determination of Disputes, International Union of Operating Engineers, Local 132, AFL-CIO, and International Union of Operating Engineers, Local 132 A, B & C, AFL-CIO, shall notify the Regional Director for Region 6, in writing, whether they will refrain from forcing or requiring the Employers, by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to employees represented by Interna- tional Union of Operating Engineers, Local 132, AFL-CIO, and International Union of Operating Engineers, Local 132 A, B & C, AFL-CIO.