Local 825, Operating Engineers

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 825-A, B, C, and D, International Union of Operating Engineers - and Iacono Construction Company, Inc. and Local 239, Laborers Interna- tional - Union of North America. Case 22-CD-296 December 7, 1976 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, PENELLO, AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Iacono Construction Company, Inc., herein called Iacono or the Employer, alleging that Local 825-A, B, C, and D, International Union of Operating Engineers, herein called Operating Engi- neers, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Gregory M. Burke in August 1976, in Newark, New Jersey. 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, the parties were given an opportunity to file briefs; however, no briefs were filed. 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 are free from prejudicial error and are hereby affirmed. Upon the basis of the entire record in this case, the Board makes the following findings: 1. BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that Iacono is a New Jersey corporation engaged in the business of building and construction. Iacono stipulated to the purchase of goods from outside the State of New Jersey of an amount in excess of $50,000 during the preceding 12 months. Accordingly, we fmd that it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Operating Engineers and Local 239, Laborers Inter- national Union of North America, herein called Laborers, are labor organizations within the meaning of Section 2(5) of the Act. M. THE DISPUTE A. The Background Facts During, the period in question, the Employer, pursuant to an oral subcontract, was performing certain masonry work for Herrod Construction in the Borough of Totowa in the State -of New Jersey. The Employer is a member of the Building Contractors Association of New Jersey, which has a collective- bargaining agreement with the Laborers. The Build- ing Contractors Association of New Jersey is a member of the Mason Contractors Association of North America which has a contract with the Laborers International Union of North America. Pursuant to the aforementioned contracts, which were both in effect during the period in question, the Employer has generally assigned the work involving operation of the forklift to transport masonry materi- als, the work in dispute, to employee members of the Laborers. On or about May 15, 1976,1 the Employer com- menced performing masonry work at the Totowa, New Jersey, jobsite. Sometime in June, a representa- tivefrom the Operating Engineers came onto 'the jobsite and tried to get the Laborers to stop operating the forklift machine, as he contended that the operation` of said machine was operating engineers' work. A few days later, the Operating Engineers threatened to picket the job° if the operation of the forklift was not assigned to employees represented by it. The Operating Engineers submitted the dispute involved herein to the Impartial Jurisdictional Dis- putes Board, herein called the Disputes Board. When Iacono became aware of the fact that the issue had been submitted to the Disputes Board, it wrote a letter to the chairman of the Disputes Board inform- ing him that Iacono did not have a contract with the Operating Engineers and that it had not stipulated that the Disputes Board would have authority to settle jurisdictional disputes. In the letter Iacono further stated that, if any decision is made by the Disputes Board contrary to Iacono 's present assign- ment, it would not abide by the decision. By letter dated June 25, the Disputes Board decided the instant dispute by awarding the operation of the "lull" forklift to employee members of the Operating Engineers. The Operating Engineers, on July 2, began picketing the Totowa jobsite with signs saying they were picketing Iacono because it did not abide by the award issued by the Disputes Board. Iacono was able to continue performing its contract with Herrod Construction for about a week after the picketing r All dates refer to 1976 unless otherwise indicated. 227 NLRB No. 24 LOCAL 825, OPERATING ENGINEERS 111 began. However, as the Operating Engineers stopped the forklift drivers from unloading masonry materials needed for the masons to continue working, Iacono had to stop working. The picketing at the jobsite continued until Iacono filed the instant charge. B. _ Work in Dispute The work in dispute is the operation of a forklift to transport and hoist masonry materials. C. Contentions of the Parties Iacono, a member of the Building Contractors Association of New Jersey, herein called the Associa- tion, contends that, under the provisions of the agreement between the Association and the Laborers, it is free to assign the operation of the "forklift" to employee members of the Laborers. In support of its contention, Iacono notes that article IV, section (u), of the agreement states that: "When handling materi- als, laborers will operate and maintain all power equipment claimed by the Laborers International Union of North America, including fork-lifts, power- buggies and conveyors." Iacono further contends that the disputed work has traditionally been assigned to employees represented by the Laborers, that the Operating Engineers has no claim to the work, and that Iacono has not agreed to be bound by the decisions of the Disputes Board. The Laborers contends that it entered into a valid collective-bargaining agreement with Iacono to per- form the work in dispute, that the work is traditional- ly assigned to laborers, and that the Operating Engineers has no claim to the work. The Operating Engineers maintains that all forklift work is properly assigned only to operating engineers, and, further, that the Disputes Board hasawarded the work in dispute-, to the employee members of the Operating Engineers. D. Applicability of the Statute Before the Board may proceed with a 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. The record indicates that in June the Operating Engineers tried to get the laborers to stop operating the forklift machine and threatened to picket Iacono if the operation of said machine was not assigned to operating engineers. On July 2, the Operating Engi- neers picketed the construction site on which Iacono was working. The purpose of the picketing was to force Iacono to abide by an award of the Disputes Board which assigned the work to employee members of the Operating Engineers. At the hearing, the Laborers claimed the disputed work. - Based on the evidence presented, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and the dispute is properly before the Board for determination. 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.2 1. Certification and collective-bargaining agreement There has been no evidence that the labor organiza- tions involved herein have been certified by the Board, nor is there evidence indicating that a Board certification covers the disputed work. Iacono is a member of the Building Contractors Association of New Jersey which has a contract with the Laborers. The work in-dispute herein is covered by the contract with the Laborers. We therefore find that the contract with the Laborers favors Iacono's assignment. 2. Company. and area practice Iacono presented evidence which indicated that over the past 20 years in which it has been in operation laborers have historically operated the forklift on a job assisting masons. Iacono presented a list containing the jobs it performed over the past l0.years on which laborers operated the forklift machine. Testimony from other masonry, contractors indicates that the area practice is to assign the operation of the forklift to laborers. We find therefore that this factor tends to favor awarding the disputed work to employees represented by the Laborers. 3. Skills, efficiency, and economy of operation The record indicates that forklift operators are not required to be licensed. However, there is some indication that forklift operators receive special training and that Iacono hires an operator because of his training and experience. Iacono contends that it is more economical to assign the operation of the forklift to laborers rather than to operating engineers 2 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U.S. 573 ( 1961); International Association of Machinists, 1402,1410-11(1962). 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because, when the forklift is not in operation, the laborers can assist the masons in the performance of their work whereas operating engineers will not. Further, Iacono -contends that laborers are more experienced in operating the forklift on mason-jobs and that they are more familiar with masonry terms. In addition to operating the forklift, the laborers operate "mixing machines" on masonryjobs. We conclude that the factors of skill, efficiency, and economy of operation strongly favor the award of the disputed work to the employees represented by the Laborers. 4. The Disputes Board award Although we do not consider the Disputes Board award of the work binding on Iacono, we do consider it as a factor in determining the proper assignment of the work in dispute. However, in view of the fact that Iacono never contracted to permit the Disputes Board to settle jurisdictional disputes, we are of the opinion that the Disputes Board award should not be, given controlling weight herein. We thus find that this factor favors neither the Laborers nor the Operating Engineers. Conclusions Upon the record as, a whole, and after full consider- ation of all relevant factors involved, we conclude that the Employer's employees who are represented by the Laborers are entitled to the work in dispute. In reaching this conclusion, we have particularly' relied on the Employer's assignment of the work to its employees; the fact that its assignment is consistent with past area practice and the Employer's collective- bargaining agreement with the Laborers; the fact that the Laborers-represented employees possess the' req- uisite skills to perform the work; and the efficiency and economy of operation which result from such assignment . We shall, therefore, determine the dis- pute before us by awarding the work involved herein to those employees represented by the Laborers, but not to that Union or its members. Scope of Award Both Iacono and the Laborers request that the operation of the forklift on the construction site at the corner of Riverview Drive and Madison Road, Totowa, New Jersey, be awarded to employees represented by the Laborers. Accordingly, we limit the award to the Totowajobsite. DETERMINATION OF THE 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 of Iacono Construction Company, Inc., represented by Local 239, Laborers Internation- al Union of North America, are entitled to perform the work of operating the forklift to transport and hoist masonry materials at the construction site at the corner of Riverview Drive and Madison Road, Totowa, New Jersey. 2. Local 825-A, B, C, and D, International Union of Operating - Engineers, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the assignment of the above work to its members or to employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 825-A, B, C, and D, International Union of Operating Engineers, shall notify the Regional Director for Region 22, in writing, whether it will refrain from forcing or requiring, by means proscribed by Section 8(b)(4)(D) of the_ Act, the assignment of the work in dispute to employees represented by Local 825-A, B, C, and D, International Union of Operating Engineers, rather than to employees represented by Local 239, Labor- ers International Union of North America.