Operating Engineers, Local 825

OPERATING ENGINEERS. LOCAL 825 Local 825, Branches A, B, C, D, International Union of Operating Engineers, AFL-CIO and Bafill Con- struction Corp. and Construction and General La- borers Union, Local 17, AFL-CIO. Case 2-CD-560 June 1, 1979 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN FANNING AND MEMBERS JENKINS, PENELLO, AND TRUESDALE This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Bafill Construction Corp., herein called the Employer, alleging that Local 825, Branches A, B, C, D, International Union of Operat- ing Engineers, AFL-CIO, herein called Respondent or Operating Engineers, had violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by Construction and General Laborers Union, Local 17, AFL-CIO, herein called Laborers. Pursuant to notice, a hearing was held before Hear- ing Officer David E. Leach III on July 10 and August 21-22, 1978. All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. 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 proceeding. the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, an Illinois corporation with its principal place of business in Mineola, New York, is engaged in the business of general masonry construction. During the past year the Employer received finished products from outside the State of New York having a value in excess of $50,000. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Oper- ating Engineers 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 The parties stipulated the following: On April 7 or 8, 1978, John McLendon, Operating Engineers business agent, went to the Otisville Prison jobsite where Bafill was working and asked Frank Filloramo. Bafill's president, to assign the work of op- erating the high-reach forklift to Respondent's mem- bers. Filloramo stated the work had been assigned to laborers (represented by Local 17). The Operating Engineers submitted the matter to the Impartial Ju- risdictional Disputes Board, herein called IJDB. On May 11, 1978, the case was heard and the assignment was subsequently made to Respondent. Thereafter, Filloramo again refused McLendon's request that his members be assigned the work. The Operating Engi- neers then picketed Bafill with signs which stated that Bafill did not have a contract with them for the pe- riod from on or about May 17, 1978, through June 6, 1978. On June 8, 1978, the parties entered into an interim agreement by which Bafill agreed to assign the fork- lifts alternatively between the Laborers and the Oper- ating Engineers, and the picketing ended. The agree- ment stipulated that it merely ended the picketing so that the work could continue while the Board consid- ered the jurisdictional dispute herein. It was further agreed by and between the parties that the interim agreement of June 8, 1978, was not to be considered as binding upon the parties beyond its described limi- tations. B. The Work in Dispute The work in dispute involves the operation of Baf- ill's high-reach forklifts, including the "Pettibone" and "Lull" types, at the Otisville Federal Prison con- struction site in Orange County, New York. C. The Contentions of the Parties The Employer contends that its assignment of the high-reach forklift work to the Laborers was proper: that in Orange County, it is the custom among ma- sonry contractors to assign the work to laborers, both for economy and because of the satisfactory skill of the Laborers. The Laborers asserts that it was as- signed the work of operating the forklifts because they were being used to supply masons with material, which is properly within the scope of the classification of mason tenders. Respondent takes the position that both it and the Laborers are members of the Building and Construc- tion Trades Department of the AFL-CIO, and are 242 NLRB No. 97 673 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore bound by the decision of the IJDB of May 1978, which assigned the disputed work to the Oper- ating Engineers. It also argues that Bafill is similarly bound due to its contractual arrangement with the Laborers. In the alternative, it argues that on the mer- its the disputed work should be assigned to the Oper- ating Engineers. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 the parties have not agreed upon a method for the voluntary adjustment of the dispute. The record shows that McLendon, business agent for the Operating Engineers, claimed the work for his union after it had been assigned by the Employer to the Laborers. The Operating Engineers then sub- mitted the matter to the IJDB and received the as- signment of the work in dispute from it. McLendon again requested the work and was refused. The Oper- ating Engineers then picketed Bafill from about May 17 through June 6, 1978, to obtain the disputed work. These facts establish reasonable cause to believe that Section 8(b)(4)(D) was violated. The Operating Engineers however contends that an agreed-upon method for the voluntary adjustment of the dispute exists. We agree. The Employer, although not a member of the Construction Employers of the Hudson Valley, Inc., admitted that it was bound by that association's collective-bargaining agreement with the Laborers by virtue of the agreement between the Mason Contractors Association (of which it is a member) and the Laborers International Union. which provided that the Employer would conform its operations to the applicable local agreement. The La- borers also admitted that the aforesaid agreement covered all of the mason contractors working in the area in which the Otisville Prison jobsite is located and that Bafill was expected to comply with it as well, because of its agreement with the International.' Arti- cle IV, "Trade Jurisdiction," of the agreement pro- vides: (a) The employer agrees to recognize the juris- diction of the Laborers International Union of Wl.l regard to Member Jenkins' reliance on Local 42. Bricklavers, Ma- sons and Plasterers International Union Ameruia. A FL (10 (Spancrete Northeast, Inc.). 192 NLRB 64 (1971), we note that there the local agreement did not provide for resort to the National Joint Board (the IJDB's prede- cessor), but on the contrary, the employer had deliberately negotiated out of it all references to the Joint Board. We note further that the Employer and Local 17 agreed that it was not necessary for the Employer to execute the local agreement because it was hound to it anyway by virtue of its Interna- tional agreement. and that the local agreement itself provided that those employers having national agreements with the International did not have to sign the local one. North America (see "Jurisdiction", pages 1-5) that have been established by agreements with other crafts, awards contained in the greenbook, or as a result of decisions by the Impartial Board for The Settlement of Jurisdictional Disputes. (b) In the event that there is a jurisdictional dispute, the parties to this agreement shall ad- here to the agreement known as the Construction Industry Plan for Settlement of Jurisdictional Disputes negotiated between the Building Trades Department and the major national asso- ciations of contractors. Disputes concerning ju- risdiction shall not be subject to the grievance and arbitration procedures otherwise provided in this agreement but as above stipulated. Thus, the Employer and the Laborers have agreed to resolve this jurisdictional dispute in the manner provided by the IJDB. The Operating Engineers and the Laborers are members of the Building and Con- struction Trades Department, AFL-CIO, and as members they are signatory to the agreement creating the IJDB and are bound to abide by its rules and procedures for the settlement of jurisdictional dis- putes.2 Since all parties are bound to submit this dis- pute to the IJDB,3 we shall quash the notice of hear- ing issued herein. ORDER It is hereby ordered that the notice of hearing is- sued in this proceeding be, and it hereby is, quashed. MEMBER JENKINS, dissenting: I would proceed to determine this dispute, rather than quash the notice of hearing. I have previously dissented over the policy this Board is following in denying employers the right to invoke the procedures of Section 10(k) of our Act by finding agreed-upon voluntary methods for the resolution of the dispute when, in fact, the employer has never agreed that such disputes should be resolved in another forum.4 In the instant case, my colleagues find that the Em- ployer, although not a member of the Construction Employers of the Hudson Valley, Inc., is bound by 2 xal Union No. 70, International Association of Bridge, Structural and Ornamental Iron Workers. AFL CIO, and its agent. James R. Bunch (F W. Owens and Associates, Inc.), 205 NLRB 1171 (1973). Pipetfitersv Local No 195, United Associration of Journtymen & Apprentices of Plumbing & Pipefitting Industr of the United State.s and Canada (Cleveland Wrecking Companv, 218 NLRB 172 (1975), Painters ocal 203, Interna- tional Brotherhood of Painters and Allied Trader (E 0. Brunner Plastering (o.). 234 NLRB 235 (1978). ' See my dissenting opinions in United Association of Journeymen and Ap- prentie.s of the Plumbing and Pipe Fitting Industri of the United States and ('anada, Local Union No. 447, AFL CIO (Capitol Air Conditioning, Inc. J, 224 NLRB 985 (1976); Glass Workers Local No. 740, International Brotherhood of Painters and Allihed Trades, AFL CIO (Tom Benson Glass Co., Inc.), 224 NLRB 1155 (1976), 674 OPERATING ENGINEERS. LOCAL 825 that association's collective-bargaining agreement with Laborers Local 17, and therefore bound to the jurisdiction of the IJDB. I do not agree. The Employer is engaged in masonry work on con- struction projects in the New York City area. The Employer has not worked within the jurisdiction of either Operating Engineers Local 825 or the Laborers Local 17, prior to the present job at the Otisville Prison site. Through its membership with the Mason Contractors Association of America, the Employer was subject to an International agreement between MCAA and the Laborer's International Union of North America. The agreement between MCAA and Laborers' International Union provides at article V as follows: "When the Employer enters into an area where wages, hours and working conditions have been agreed upon through bona fide collective bar- gaining, the Employer will be presented with such evidence by the Union and the Employer will con- form its operations accordingly."' At a meeting in March 1978 prior to the Otisville operation, Frank Filioramo. president of the Em- ployer, discussed with Lorenzo Diorio, business man- ager of Laborers Local 17, the need for forklift opera- tors and assigned that operation to members of the Laborers Local 17. The Employer did not execute the standard collective-bargaining agreement utilized by the Laborers Local 17 in the Otisville area because under article V, quoted above, the Employer was not obligated to execute a local agreement but merely to I The Board has held in a previous case that this agreement does not bind an employer to joint Board procedures for the settlement of jurisdictional disputes. Local 42. Bricklayers. Masons and Plasterers International Union of America, AFL CIO (Spancrete Northeast. Inc.). 192 NLRB 64. 65. fn. 2 (1971). conform his operation to wages, hours, and working conditions that had been agreed upon through bona fide collective bargaining. Since the Employer only agreed to be bound by Laborers local 17's wages, hours, and working conditions,. I fail to see how this type of agreement binds the Employer to the IJDB. The Employer notified the IJDB, prior to its hearing the dispute, that Bafill was not bound to the proce- dures of the IJDB and would not and did not partici- pate in the proceedings. There is no other stipulation nor agreement that binds Bafill to the IJDB. Thus, one of the parties (MCAA) to the only agreement upon which the majority relies to find Bafill bound to the IJDB has asserted that that agreement does not so bind Bafill, and has so advised Bafill. Thus my col- leagues' statement that the Employer "admitted that it was bound by that Association's collective-bargain- ing agreement" is in error. Both Bafill and MCAA have asserted precisely the opposite. This Board has held that, regardless of whether the unions involved are bound to arbitration procedures such as the IJDB, if the employer has not agreed to be bound, this Board is empowered and directed un- der Section 10(k) of the Act to make a binding deter- mination of the dispute that will be controlling on all the parties, including the employer. 6 I find that there is no agreement binding all the parties to voluntary adjustment of the dispute here involved, and I would determine the dispute on its merits. N 1I. R B v Plastrrerrs .ocal L'nion No. 79, Operative Plasterers' and Ce- menl Mavons' International 4ssociatrlon. AFL ('10 ITevas State Tile & Ter- razzo Co. el al. 404 U.S. 116 1971): ather. Union l-al 104. The 4"ood, Wire and Metal Lathers International I on. .4FI. ('1O (he Blaine Petrn Cornpani). 186 N.RB 365. 367 (1970) 675