Laborers Local 317 (Mcwad Inc)

LABORERS LOCAL' 317 (MCWAD INC) ' Laborers' International Union of North America, AFL-CIO, General , Laborers' Union Local No. 317 and McWad Incorporated and Local No. 139 of the International Union of Operating En- gineers. Case 18-CD-286-1 20 February 1985 'DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The charge in this Section 10(k) proceeding was filed 10 September 1984 by the Employer, alleging that the Respondent, Laborers' International Union " of `No'rth America, AFL-CIO, General Laborers' Union Local No. 317 (Laborers), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to employees rep- resented by Local No. 139 of the International Union of Operating Engineers (Operating Engi- neers). The hearing was held 3 October 1984 before Hearing Officer William Y. Kim. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Employer, a Wisconsin corporation, is en- gaged in the business of masonry contracting with its principal place of business in Wausau, Wiscon- sin. During the past calendar year, a representative period, the Employer purchased and received goods and services valued in excess of $50,000 from points located directly outside the State of Wisconsin. The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Laborers and the Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The record discloses that the Employer, the sub- contractor herein, is bound to a collective-bargain- ing agreement between the Chippewa Valley Con- tractors Association of Eau Claire and Area and General Laborers' Union Local No. 317.1 An ad- I The contract which was introduced into evidence expired on April 30, 1984 However, testimony by Victor Wadzinski, the Employer's president , established that he failed to give timely notice of a desire to 145 dendum to that agreement executed by the Em- ployer on 21 August 1981 guarantees the work of operating forklifts, highlifts, and bobcats to general laborers union member's. Oscar J. Boldt Construction, the general contrac- tor herein, is a member -of the Wisconsin Chapter, Associated General Contractors of America, Inc., which is-a party to a master agreement, known as the Area II Agreement, with the Operating Engi- neers. Boldt is also bound to a collective-bargain- ing agreement between the Chippewa Valley Con- tractors Association of Eau Claire and Area and the General Laborers' Union Local No. 317. On 13 October 1983, the Employer and Boldt entered into a subcontracting agreement in which the Employer agreed to perform the masonry work at the Memorial Student Center, University of Wis- consin-Stout in Menomonie, Wisconsin. That docu- ment contains a - provision requiring the Employer to "supply only labor and/or- materials which will' not cause labor disputes in the overall performance of contractor's work" and requires the Employer to take immediate steps to resolve any disputes that arise. The Employer began performing the work in May 19842 and initially assigned to employees rep- resented by the Laborers the disputed work of op- erating forklifts. The evidence indicates that in Oc- tober 1983, prior to or simultaneous with the begin- ning of work on the Stout project, an initial meet- ing was held between Boldt and the Operating En- gineers. Operating Engineers Vice President Dale Stubbe informed Boldt that there would be a prob- lem with the Employer's assignment of the forklift operation to employees represented by the Labor- ers. Boldt's representatives, Dennis Moyer and Steve Chavlovich, met with the Employer on 23 July to discuss the problem and informed Victor Wadzinski, the Employer's president, that in the event the Operating Engineers filed a grievance, the Employer would be responsible for resolving the dispute. On 26 July the Operating Engineers filed a grievance with Boldt, alleging that Boldt had violated the Area II Agreement by entering into a subcontracting arrangement with the Em- ployer. On 31 July Chavlovich sent a letter to Wad- zinski, advising him of the filing of the grievance and reminding him of his obligation to resolve the dispute quickly. On 29 August Moyer sent a second letter to Wadzinski, suggesting alternative methods of resolving the dispute and stating that change or cancel the agreement and, as a result, by its terms the contract was automatically extended for another year The Employer was there- fore bound to its terms for another year 2 All dates hereafter are 1984 unless otherwise noted 274 NLRB No. 28 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer would be held responsible for any monetary penalties or assessments levied against Boldt as a result of the dispute. On 6 August Wad- zinksi discussed the situation with Laborers Busi- ness Manager James Griglak and by letter to the Employer dated 7 August Griglak threatened that if the disputed work were assigned to employees represented by the Operating Engineers, then the Laborers would take "such action as necessary" to enforce its contract with the Employer, including picketing and the removal of laborers from the job. B. Work in Dispute The work in dispute is the operation of the fork- lift used in connection with the Employer's mason- ry work at the Memorial Student Center, Universi- ty of Wisconsin-Stout, Menomonie, Wisconsin job- site, C. Contentions of the Parties3 The Employer contends that the disputed work should be awarded to employees represented by the Laborers based on its collective-bargaining agreement with the Laborers , its past practice and preference, skills, economy and efficiency of oper- ation, and area practice. The Operating Engineers contends that it has no jurisdictional dispute with the Laborers concerning the Employer , but rather a dispute with Boldt con- cerning a contract violation . Operating Engineers Vice President Dale Stubbe testified, however, that should the operation of the forklift be assigned to an employee represented by the Operating Engi- neers their grievance would be withdrawn. Fur- ther, it is clear from the record that the Operating Engineers claimed the disputed work . Under these circumstances , we find that there is a jurisdictional dispute between the Operating Engineers and the Laborers over the Employer's assignment of the disputed work. The Laborers contends that the work should be assigned to employees whom it represents based on the collective-bargaining agreements and area prac- tice. 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 dis- pute. 9 Neither the Operating Engineers nor Laborers filed a posthearing brief in this matter Their respective contentions are drawn from state- ments contained within the record It is undisputed that, in a letter to the Employer on 7 August, the Laborers threatened that if the disputed work were assigned to employees repre- sented by the Operating Engineers, the Laborers would take action to enforce its contract with the Employer, including picketing and the removal of laborers from the job. Under these circumstances , we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. No party contends that there is an agreed method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1 Collective-bargaining agreements Boldt and the Operating Engineers are bound to the Area II Agreement, which contains a provision indicating that the operation of forklifts on con- struction jobsites is exclusively the craft work of the Operating Engineers, and a provision forbid- ding the subcontracting of work to employers who are not signatories to an agreement with the Oper- ating Engineers.4 Additionally, Boldt is bound to a 4 The text of these provisions reads , in pertinent part Article VII Section 7 8 ELEVATOR AND FORKLIFT AS- SIGNMENT The operation of elevator or forklift trucks on con- struction jobsites (excluding warehouse and storage yard as per Teamster Operating Engineers International Agreement) is exclusive- ly the craft work of the Operating Engineers and assignment of said operation shall be made to an Operating Engineer, dispatched and covered by the terms and conditions of this agreement On jobs or projects where the use of an elevator or forklift truck is not of suffi- cient quantity to warrant the employment of an operator , the Con- tractor or Contractor Representative will contact the Union District Business Representative of the Operating Engineers and if mutually agreed , then and only then , may the Contractor use another employ- ee to perform said work Article IV Section 4 1 UNION SUBCONTRACTOR The Con- tractor agrees that, when subletting or contracting out of work cov- ered by this Agreement which is to be performed within the geo- graphical coverage of this Agreement at the site of the construction, alteration, painting, or repair of a highway, building, structure or other work, he will sublet or contract out such work only to a sub- contractor who has signed , or is otherwise bound by, a written labor agreement entered into with the Union LABORERS LOCAL 317 (MCWAD INC) collective-bargaining agreement between the Chip- pewa Valley Contractors Association of Eau Claire and Area and General Laborers' Union Local No. 317 which also covers the disputed work and for- bids subcontracting to employers who are not sig- natories to an agreement with that organization.5 The subcontracting agreement between Boldt and the Employer requires only that the Employer shall supply labor and/or materials which will not cause labor disputes in the overall performance of the contractors' work. Thus, since Boldt is subject to conflicting agree- ments which require that the same work assign- ment be made to employees represented by both Unions and the subcontracting agreement does not clarify this ambiguity, we find the subcontracting agreement to be inconclusive for purposes of re- solving this dispute. The master collective-bargaining agreement to which the Employer and the Laborers are bound, however, encompasses work involving the "un- loading, mixing, handling and conveying of all ma- terials . . . by any mode or method," as well as a specific contract addendum to Article 26 which states that "the operation of forklifts, highlifts and bobcats, no matter what height they are used, be assigned to general laborers union members." We rely on the broad language of these provisions to find that the factor of the collective- bargaining agreements favors an award of the work in dispute to employees represented by the Laborers. 2. Company preference and past practice The record reflects that for at least the past 10 to 12 years the Employer has utilized only employees represented by the Laborers to perform the disput- ed work with two exceptions.6 In view of this es- The text of these provisions reads, in pertinent part Article XVI Part I TENDERS Tending masons , plasterers, car- penters and other building and construction crafts Tending shall consist of preparation of materials and the handling and conveying of materials to be used by mechanics of other crafts, whether such preparation is by hand or any other process After the material has been prepared, tending shall include the supplying and conveying of said material and other materials to such mechanic , whether by bucket, hod, wheelbarrow, buggy, or other motorized unit used for such purpose , including fork lifts when used at levels not in excess of nine feet Unloading , handling and distributing of all materials, fix- tures, furnishings and appliances from point of delivery to stockpiles and from stockpiles to approximate point of installation Article XIX Section 1-is agreed that any work sublet and to be done at the site of the construction alteration , painting or repair of a building , structure, or other work and when a portion of said work to be sublet is under the jurisdiction of this Agreement, the work shall be sublet to a Subcontractor signatory to this agreement 6 Wadzinski testified that the Employer had not had a contract with the Operating Engineers for over 10 years and, on the 45 subcontracting jobs performed over the past 4 years by the Employer , the Employer had used laborers except on the Market & Johnson , Inc job in 1981 and the Oscar J Boldt parking ramp job in 1981 These two jobs were the sub- jects of two prior Board decisions involving the Employer Operating En- 147 tablished practice of assigning the work of operat- ing forklifts in connection with masonry work to employees represented by the Laborers, we find the factor of employer practice favors an assign- ment of the disputed work to employees represent- ed by the Laborers. Wadzinski testified that it is the Employer's pref- erence that the disputed work be performed by la- borers. Consequently, we also find that the factor of employer preference favors an award to employ- ees represented by the Laborers. 3. Area practice Wadzinski testified that most masonry contrac- tors working around the northern half of Wiscon- sin used laborers to run forklifts. Al Milak, the La- borers' International representative, testified that most union mason contractors utilize laborers to operate forklifts Dale Stubbe, the Operating Engi- neers' vice president, testified that contractors in the Wisconsin area used operating engineers to op- erate the forklift. Under these circumstances we find that the factor of area practice is inconclusive and does not favor an award of the disputed work to employees represented by either union. 4. Relative skills Wadzinski testified that employees represented by the Laborers and the Operating Engineers were equally qualified to operate the forklift. No evi- dence to the contrary was presented. We therefore find that this factor is inconclusive in determining the award of the disputed work. 5. Economy and efficiency of operation Wadzinski testified without contradiction that when not engaged in operating a forklift, a laborer performs other tasks in connection with masonry work, including mixing mortar and supplying the mason with brick and block, mortar, and various other materials. In addition, should something fall from the forklift during transport, a laborer was al- lowed to get off the machine and pick it up. How- ever operating engineers were restricted in the number of times they could dismount from the forklift. Under these circumstances, we find that the factor of economy and efficiency of operation favors an award of the disputed work to employees represented by the Laborers. Conclusions After considering all the relevant factors, we conclude that employees represented by the Labor- gineers Local 139 (Mc Wad I), 262 NLRB 1300 (1982 ), Laborers Local 1359 (Mc Wad II), 264 NLRB 1397 (1982) 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers are entitled to perform the work in dispute. We reach this conclusion relying on the factors of the collective-bargaining agreements, employer prefer- ence and practice, economy and, efficiency. In making this determination, we are awarding the work to employees represented by the Laborers, not to that Union or its members. Scope of the Award The Employer contends that, because this dis- pute has arisen between the parties on three occa- sions, the Board should issue abroad award to em- ployees represented by the Laborers on all 'jobs performed by the Employer within the geographic jurisdiction of the Operating Engineers. Contrary to the Employer's contentions, we conclude that a broad award is not warranted. Although the Operating Engineers engaged in threats of picketing in McWad I, no such threats occurred in McWad II 'or in this case. Rather, the Operating Engineers filed a grievance concerning the disputed work, 'and it was the Laborers that threatened to picket should the work be reassigned to employees represented by the Operating Engi- neers. In these circumstances, we decline to issue the broad award and we limit the present determina- tion to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of McWad, Inc. represented by La- borers' International Union of North America, AFL-CIO; General Laborers' Union Local No. 317 are entitled to perform the work of operating forklifts at the Memorial Student Center, Universi- ty of Wisconsin-Stout, Menomonie, Wisconsin job- site.