Int'l Union of Operating Engineers Local 18

INTL. UNION OF OPERATING ENGINEERS, LOCAL 18 International Union of Operating Engineers, Local No. 18, 18A, 18B, 18C, 18G and 18RA, AFL-CIO and Masonry, Inc. and Laborers' Inter- national Union of North America, AFL-CIO, Local No. 894.' Case 8-CD-295 April 29, 1975 DECISION AND DETERM INATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Masonry, Inc., herein called the Em- ployer, alleging that the International Union of Operat- ing Engineers, Local No. 18, 18A, 18B, 18C, 18G and 18RA, AFL-CIO, herein called the Engineers, has vi- olated Section 8(b)(4)(D) of the Act. Pursuant to notice a hearing was held before Hearing Officer Alan D. Melnyk on December 9, 1974, and January 9 and 10, 1975. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bear- ing on the issues. Thereafter, Masonry, Inc., and Engi- neers filed briefs, and Laborers' International Union of North America, AFL-CIO, Local No. 894, herein called the Laborers, filed a statement of position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings 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: I THE BUSINESS OF THE EMPLOYER The Employer, an Ohio corporation with its princi- pal office and place of business in Wadsworth, Ohio, is engaged in the business of general masonry construc- tion in the State of Ohio. The parties stipulated, and we find, that during the past year the Employer received finished products to be used in its construction business directly from sources outside the State of Ohio valued in excess of $50,000. We find that the Employer 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. I The names of both Unions appear as amended at the hearing II THE ORGANIZATION INVOLVED 607 The parties stipulated, and we find, that the Engi- neers and the Laborers are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts of the Dispute The Employer has been engaged in the masonry con- struction business in the Akron area for the past 10 years. It is a member of the Masonry Contractors As- sociation of Akron, Ohio, herein called the Associa- tion, and the Akron Division of the Associated Con- tractors of Ohio, a multiemployer group. The Association is a party to collective-bargaining agree- ments with the Laborers Local No. 894 and the Labor- ers International Union of North America, AFL-CIO. Pursuant to these agreements, the Em- ployer assigned to its employee represented by Labor- ers Local No. 894 the operation of a Pettibone forklift on the jobsite at the City of Akron's Fire Station No. 4, located at the northeast corner of the intersection of Thornton and Main Streets, Akron, Ohio. This employee began work at the jobsite in early October 1974. On October 16, Engineers Business Agent Eugene McVann entered the jobsite and in- formed the job foreman and the Laborers forklift oper- ator that the Engineers wanted a member of the Engi- neers operating the forklift. On October 21, the Engineers began picketing, which lasted until Novem- ber 5, 1974. Consequently, the Laborers and the Brick- layers union members ceased work on the first day of picketing and remained off the job for approximately 2 hours on that day. Also, on October 21, when the Engineers picket arrived on the site, the plumbers and the electrician working on the job left the worksite and did not return until 8 a.m., October 23, 1974. Although the work of the operation of the forklift is not as yet finished, as the project is still under construction, no work stoppages have occurred by any trade on the jobsite since October 23 and no picketing has taken place since November 5. In addition to the Engineers claim for the operation of the forklift on October 16, Engineers Business Agent McVann made further claim for the work on October 21, and Engineers Business Agent Walter Lindner made still another claim on October 22, at a meeting between Employer's president, Wilbur Graff, and Lindner. At this last meeting, Lindner told Graff that if he signed a contract with the Engineers the picket would be removed. The Employer refused to sign the contract, and the picket remained until November 5, 1974. 217 NLRB No. 111 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Work in Dispute The work in dispute is the operation of a forklift at the jobsite at the City of Akron's Fire Station No. 4, located at the northeast corner of the intersection of Thornton and Main Streets, Akron, Ohio. C. Contentions of the Parties The Employer contends that the work is properly assigned to its employee who is a member of the Labor- ers Union. The Employer desires that the present as- signment be continued because it is consistent with the Employer's past practice, national and area practice, reasons of economy and efficiency of operations, and because of its past and current collective-bargaining agreements in effect between it and the Laborers Local and International Unions. Laborers Union agrees with the Employer that the work assignment to its member is correct and is consist- ent with past practice and the collective-bargaining agreement currently in effect between the Employer and the Laborers Local and International Unions. Fur- ther, the Laborers contends that its members' skills and efficiency and economy of operations favor an award of the disputed work to employees represented by it. The Laborers states that area and industry practice is am- bivalent. The Engineers claims that the operation of the fork- lift is traditionally within the Engineers jurisdicition because the operation of all heavy-duty equipment is traditionally within Engineers jurisdiction . Engineers members are trained to operate and maintain such equipment through formal training programs. Further, engineers have performed and been awarded such fork- lift operator work in pursuance of the National Joint Board decisions, where the Engineers and other em- ployers in other geographical areas have been parties to -disputes over the operation of forklifts of all varieties. Also, Engineers Local No. 18, affiliated with the Inter- national Union of Operating Engineers, is administered out of Akron, Ohio; has territorial jurisdiction which includes the area in question; and has a statewide agree- ment with the Ohio Contractors Association, which covers the operation of various forms of construction equipment, including a forklift. We note, however, that neither the Employer nor Laborers Local No. 894 is a signatory to an agreement with the Ohio Contractors Association and, of course, neither is bound by the agreement between the Engineers Local No. 18 and the Ohio Contractors Association. 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, and that there is no agreed-upon method for the voluntary adjustment of the dispute. The record facts show that the Employer assigned the work to its employee, who is a member of and is represented by Laborers Local No. 894. The Engineers demanded that the Employer take the work away from its employee member of Laborers Local No. 894 and assign it to a member of the Engineers Local No. 18. In support of its demand, the Engineers picketed and caused a work stoppage at the jobsite. Accordingly, we find that there is reasonable cause to believe that Sec- tion 8(b)(4)(D) of the Act has been violated. The parties stipulated at the commencement of the hearing that they have been unable to voluntarily ad- just the dispute or agree on a method for voluntarily adjusting the dispute. The Employer has no agreement with the Engineers, and its agreement with the Labor- ers does not provide for submission of disputes to the Impartial Board.' The Employer has not agreed to be bound by decision of the Impartial Board. Accord- ingly, we find that all parties are not bound by an agreed-upon or alternative method for voluntary ad- justment of this dispute.' It is therefore clear from the foregoing, and we find, that at the time of the instant dispute there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all parties to the dispute were bound. Accordingly, we find that the mat- ter is properly before the Board for determination un- der Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors. We find the following factors are relevant to making a determina- tion of the dispute before us. 2 The Impartial Jurisdictional Disputes Board is the successor to the National Joint Board of the AFL-CIO Building and Construction Trades Council. 3 International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No 3, AFL-CIO {Dickerson Structual Concrete Cor- poration), 195 NLRB 575 (1972). The Engineers made a motion to hold the matter in abeyance, pending arbitration under the Employer's and Laborers, Local and International, agreements The Hearing Officer denied the motion, stating that he would refer the matter to the Board We affirm his ruling on the ground that the Employer and the Laborers are the only parties to these agreements and therefore all parties have not agreed to be bound by a single tripartite arbitration proceeding United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 67 and Boston and Vicinity Carpenters District Council (Aberthaw Construction Co), 208 NLRB 289 (1974); and The Den- ver Printing Pressmen andAssistants Union, Local 22, a/w the International Printing and Graphic Communications Union (The Denver Publishing Company), 208 NLRB 745 (1974). INTL. UNION OF OPERATING ENGINEERS, LOCAL 18 1, Certifications and collective-bargaining agreements There is no Board certification determining the bar- gaining representative for the employee assigned to per- form the work in dispute. Neither of the labor organiza- tions concerned herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. At no time material to this proceeding has the Em- ployer been a party to a collective-bargaining agree- ment with the Engineers. Since its establishment some 10 years ago, the Employer has been a party to succes- sive collective-bargaining agreements with the Local and International Laborers Unions through the Ma- sonry Contractors Association of Akron, Ohio, the multiemployer group of which the Employer is a mem- ber. The current local and international agreements became effective April 11, 1973, and May 1, 1974, respectively and extended through April 10, 1976, and April 30, 1977, respectively. These agreements do not recognize any outside agreements. The local collective-bargaining agreement between the Employer and Laborers Local No. 894, in existence at the time the instant dispute arose, contains a job classification wage rate clause which stated as follows: Paragraph 2b: Group II: Barco Type Tamper; Pipelayers; Rock Driller; Mucker-Tunnel; Burner; Form Setter; Power Saw: Jack Hammer; Bottom Man; Hod Carrier; Power Buggy or Power Wheel Barrel; Bob Cat or Similar! Thus, the contract provides that laborers will use power equipment in loading, unloading, and conveying materials to the point of erection. While the contracts do not specifically identify each piece of equipment laborers will use, the record indicates that a forklift of the type involved here is used to perform the same functions as other equipment used by laborers to per- form similar work. The Employer's position is that the contracts' clas- sification of mason-tender, defined as a laborer who unloads and conveys all masonry materials to point of erection, allows the use of small specialized equipment in the course of performing the job functions. As noted above, some of this specialized equipment is generally named in the current local contract at page 2, para- graph 2b, as a "Power Buggy or Power Wheelbarrel; Bob Cat or Similar." Dougherty, chief negotiator for the Mason Contractors Association, testified that this language would cover a bucket-loader forklift, called a "scatback," and a small motorized pallet mover, called a "pallet buggie," which is a form of forklift. The Em- ployer and the Laborers contend that the "Pettibone" " The agreement was executed on November 26, 1974, effective May 1, 1974, through April 30, 1977. 609 forklift which is used in the work in dispute herein comes under this classification of small specialized ma- chinery which is traditionally used by the mason-tend- ers to load and unload materials on the jobsite. The Engineers contends, on the other hand, that the local contract's mason-tender classification does not designate the specific types of machines which are to be operated by the mason-tender5 to convey materials. The Engineers argues that the "Pettibone" forklift used by the employee in the work in dispute is an 11-ton forklift, which is not similar to the "Bob Cat" specified in the current contract in terms of tonnage or capacity. As noted above, the Employer's chief negotiator tes- tified that the word "similar" would include a piece of equipment such as the forklift in dispute here, if it was used in the accomplishment of the laborer's traditional tasks of loading and unloading materials at the jobsite. Accordingly, we conclude that the current collec- tive-bargaining agreements between the Employer and the Laborers favors an award of the disputed work to employees of the Employer represented by the Labor- ers. 2. Employer's assignment and past practice Pursuant to its collective-bargaining agreements with the Laborers Local and International, the Em- ployer for the 10 years of its existence assigned the work in dispute to its employees represented by the Laborers. It does not not appear that the Employer has ever assigned this work to an employee represented by the Engineers. Accordingly, we find that this factor favors an award of the disputed work to the Employer's employees represented by the Laborers. 3. Area and industry practice While it is true that it is the current practice of some area employers similar in size to that of the Employer herein to assign this work to employees represented by Laborers Local No. 894, it also appears that other em- ployers assign this type of work to employees repre- sented by the Engineers. It is also noted that certain decisions of the Impartial Board have awarded similar work to the Engineers. Accordingly, we find that industry and area practice does not favor an award of the disputed work in either respect. 5 The Engineers contends further that the local agreement in effect be- tween the Employer and Laborers in October 1974, when the dispute oc- curred, was not the current local agreement in which "Bob Cat or Similar" equipment is specified However, the Employer testified that the current contract wage rates and relevant portions had been negotiated and were in effect at the time of the dispute. 610 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD 4. Relative skills, efficiency, and economy of Conclusion operations The Employer strongly favors an award of the work to its employees because of their experience in perform- ing the disputed work and the resulting efficiency and economy of operation. The Employer presented evidence that it has tradi- tionally assigned this work of the operation of a "Petti- bone" forklift to its own employees. It has done so because an employee to whom this work was assigned would only spend about 30 percent to 50 percent of his worktime in the operation of the forklift and the re- mainder of his time he would spend in performing various other laborer chores, such as erecting scaffold- ing, mixing 'mortar, and preparing and cleaning up the worksite. Consequently, the Employer contends that if an engineer were assigned the forklift operation he would only operate it, at most, 50 percent of his work- time and the rest of the time would remain idle. Thus, the economic factor of downtime is in favor of the forklift assignment to the Employer's employees. The Employer employs a regular crew of laborers and bricklayers throughout the year and does not secure craftsmen from union hiring halls as jobs are acquired. Thus, the Employer assigned the work to its regular employees. It does not appear that the Employer's employees have had any specialized training or are generally more skilled in operating the forklift than are employees represented by the Engineers. Accordingly, we find that economy and efficiency of operations, but not skill, training, or safety, favor an award of the disputed work to the Employer's em- ployees represented by the Laborers. 6 In our view, the evidence adduced by the Employer as to past Engineers claims for the disputed work is insufficient to justify a broader award This evidence includes only one instance where there was a work stoppage caused by such a demand Furthermore, the Engineers has not in this pro- ceeding manifested an intent to take similar action on future jobsites If such conduct should occur, then it will be appropriate for the Board to consider a broader award Upon the entire record in this proceeding and after full consideration of all the relevant factors, as set forth above, we shall award the work to the employees em- ployed by the Employer, who are represented by La- borers Local No. 894, but not to that Union or its members. In making this assignment, we rely on the contracts, the initial assignment. and past practice of the Employer, and the efficiency and economy of oper- ation. This determination is limited to the particular controversy which gave rise to this proceeding.' DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. The employees employed by Masonry, Inc., who are representedby Laborers' International Union of North America, AFL-CIO, Local No. 894, are entitled to perform the work in dispute, which is the operation of a forklift on the jobsite at the City of Akron's Fire Station No. 4, located at the northeast corner of the intersection of Thornton and Main Streets, Akron Ohio. 2. International Union of Operating Engineers, Lo- cal 18, 18A, 18B, 18C, 18G and 18RA, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Masonry, Inc., Wads- worth, Ohio, to assign the above work to its members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Op- erating Engineers, Local No. 18, 18A, 18B, 18C, 18G and 18RA, AFL-CIO, shall notify the Regional Direc- tor for Region 8, in writing, whether or not it will refrain from forcing or requiring Masonry, Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute-to its members or employees which it represents rather than to employees of Masonry, Inc., represented by Laborers Local No. 894..