Laborers Local 1086 (Dentinger, Inc.)

LABORERS LOCAL 1086 (DENTINGER, INC.) Laborers International Union, Local 1086,. AFL- CIO and Bill Dentinger, Inc., Hutter 'Construc- tion Company , and International Union of Oper- ating Engineers, Local 139, AFL-CIO. Cases 30-C]D-116 and 30-CD-117 6 January 1987 DECISION AND DETERMINATION OF DISPUTE By MEMBERS JOHANSEN, BABSON, AND STEPHENS The charges in this 10(k) proceeding were filed 23 September 1985 and 7 November 1985 by the Employers, alleging that the Respondent (Laborers Local 1086), violated Section 8(b)(4)(D) of the Na- tional Labor Relations ' Act by engaging in pro- scribed activity with an object of forcing the Em- ployers to assign certain work to employees it rep- resents rather' than, to employees represented by Operating Engineers Local 139. The cases were consolidated and a hearing was held 18 December 1985 before Hearing Officer Kathleen L. " Rup- precht. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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. I. JURISDICTION Bill Dentinger, Inc., a Wisconsin corporation, is a construction firm engaged in masonry subcon- tracting with its principal office in Brookfield, Wis- consin. It annually purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Wiscon- sin. Hutter Construction Company, a Wisconsin cor- poration, is engaged in,construction as a general contractor with its principal offices in Fond du Lac, Wisconsin, where it annually purchased and received goods and materials valued at more than $50,000 directly from suppliers located outside the Slate of Wisconsin. The parties stipulate, and we find, that the Em- ployers are engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that La- borers, Local 1086 and' Engineers Local 139 are labor organizations within the meaning of Section 2(5) of the Act. 633 II. THE DISPUTE A. Background and Facts of Dispute The State of Wisconsin awarded the Oshkosh, Wisconsin, Medium Security Prison project to Hutter Construction Company in July 1984. Bill Dentinger, Inc., Hutter's masonry subcontractor, assigned the mason-tending forklift work to em- ployees represented by the Laborers. David Waite, a business representative for the Engineers, F. William Harvat from Hutter, W. C. Dentinger, Jr., and several representatives of the Laborers discussed ' the assignment on 31 August 1984. Waite indicated that Dentinger's assignment to the Laborers was unacceptable to the Engineers, and suggested that Hutter could have its own em- ployees perform mason-tending forklift work di- rectly, or that Dentinger could become a party to the collective-bargaining agreement between the Engineers and the Associated General Contractors, Wisconsin Chapter (the Area II contract). Harvat stated that Hutter had no desire to perform the work directly. Dentinger agreed at the meeting to sign the Area II Agreement. However, the Engi- neers subsequently refused to provide Dentinger with the Area II contract because Dentinger was unwilling to assign the mason-tending forklift work to employees represented by the Engineers. On '6 September 1984 the Engineers filed a griev- ance against Hutter as party to the Area II con- tract, alleging that Hutter was in violation of the contract's subcontracting clause. On 29 July 1985 an arbitrator concluded that mason-tending' forklift work was covered by the Area II contract and that the performance of that work by employees of a subcontractor not a party to the agreement violated the subcontracting clause. The arbitrator fashioned an "in-lieu-of work" remedy. A petition to vacate or modify the arbitrator's award filed 28 October 1985 by Huffer in the Federal 'District Court for the Eastern District of Wisconsin was still pending at the time of the instant hearing. In the meantime, in April 1985 and again in Sep- tember 1985, the Laborers notified Dentinger by letter that it would take legal and economic action against the subcontractor in furtherance of its claim for the mason-tending forklift work it had been as- signed. Faced with the Engineers' contractual demands, in early November Hutter asked Dentinger to change the mason-tending forklift assignment from the laborers to the engineers. ' On 5 November 1985 Dentinger wrote to the Laborers and notified it that an assignment change was going to be made and that a laborer would be laid off because of the change. About the same time Dentinger contacted 282 NLRB No. 90 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Engineers and inquired about an engineer being dispatched to man the forklift. He also again re- quested an Area II Engineers' contract be sent to him. Several days later Dentinger was notified that neither would be sent because Dentinger would not change its mason-tending forklift assignment to the engineers. On 7 November 1985 members of the Laborers picketed the main entrance to the prison project. There was a 1-day work stoppage. B. Work in Dispute The disputed work involves the mason-tending forklift work that was assigned to employees repre- sented by the Laborers by Bill Dentinger , Inc., the masonry subcontractor for Hutter on the Medium Security Prison project in Oshkosh, Wisconsin. C. Contentions of the Parties Hutter contends that the mason-tending forklift work should be awarded to employees represented by the Laborers based on employer preference, economy and efficiency, collective-bargaining agreements, and an arbitration award. Dentinger contends that the work in dispute should be awarded to employees represented by the Laborers. The Laborers contends that the employees it represents have a contractually based claim for the work in dispute ' and are preferred by Dentinger, and that these factors, combined with industry and area practice, operational efficiency, and skill and training, require an award of the work to employ- ees it represents. Both Hutter and the Laborers seek an award of the mason-tending forklift work to employees represented by the Laborers on job- sites throughout the State. The Engineers ' contends that it successfully proc- essed a grievance against Hutter for breach of the Area II contract's subcontracting clause; that an ar- bitrator issued an , opinion and award favorable, to the Engineers; that Hutter, Dentinger, the Laborers District Council, and the Laborers Local 1086, conspired to create a job incident sufficient to sup- port an unfair labor practice that would lead to this 10(k) hearing in which the Laborers would prevail; that the Engineers has never demanded that Den- tinger violate its contract with the Laborers, nor that Dentinger change its forklift assignment to em- ployees represented by the Engineers ; that the En- gineers has only demanded that Hutter comply with the opinion and award of the arbitrator; that the processing and administration of these charges are a sham and fraud on the Board; and that the Laborers has maliciously, with the knowledge and consent of Hutter and Dentinger, created an 8(b)(4)(D) violation in order to prevail in the 10(k) hearing, thereby relieving Hutter from its duty to comply with the arbitrator's opinion and award. Fi- nally, the Engineers moved to dismiss ' the charge as untimely pursuant to Section 10(b) of the Act, because the conduct occurred in August 1984 and the charges were filed about 7 November 1985. 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 on a method for the voluntary adjustment of the dis- pute. The charges herein allege violations of Section 8(b)(4)(D) of the Act. In a letter dated 19 April 1985 the Laborers notified Dentinger , that if there were, any change in the forklift operator, "Laborers Local 1086 will take any recourse it takes to main- tain our work." On 16 September 1985 the Labor- ers notified Dentinger that: These rights that the Laborers Union will ex- ercise, may 'include litigation against your company for violation of the Collective Bar- gaining Agreement, picketing to inform the other crafts and the public of the jurisdictional claim of the Laborers Union and a withdrawal of laborers from the job site in order to en- force the jurisdictional claim of the Laborers Union. On 7 November 1985 employees represented by the Laborers picketed the main entrance to the prison project to protest the assignment of the work in dispute to the Engineers . A 1-day work stoppage resulted, which involved approximately 16 contractors and the withholding of services by approximately 66 employees. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred, which is not barred by Section 10(b)' and that there, exists no agreed method of voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is prop- erly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of the disputed work after consid- ering various factors. NLRB v. Electrical Workers 1 The Engineers' motion to dismiss is denied. The charges clearly were filed within 6 months of the alleged unlawful conduct engaged in by the Laborers. LABORERS LOCAL 1086 (DENTINGER, INC.) 635 IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its deter- mination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors involved in a par- ticular 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 Dentinger is a member of the Mason Contrac- tor's Association of America (MCAA). An agree- ment between MCAA and the Laborers Interna- tional requires mason contractors to assign the tending of masons in general to members of the La- borers. On 31 August 1984 Dentinger signed a short form agreement with the Laborers . Section 5.3 contains the classification "Forklift Operator" and an accompanying wage rate. Hutter is a party to the Fox Valley Contractors Association Agreement with various Laborers' locals, which contains jurisdictional claims to mason-tending forklift work. Also, Hutter is a party to the Engineers Area II agreement, which sets forth the claim for the operation of "forklifts." An arbitrator found Hutter violated this contract by subcontracting the work in dispute to Dentinger because the latter did not have an agreement with the Engineers. Evidence concerning this factor indicates that the forklift operation is within the work jurisdic- tion of both Unions. We therefore fmd that this factor does not favor an award to employees repre- sented by either Union. 2. Company preference and past practice Since 1975 Dentinger has assigned mason-tend- ing forklift work to the Laborers on over 200 jobs and has expressed a preference to assign this work to the Laborers whenever possible . Although on two occasions Dentinger has assigned mason-tend- ing forklift work to members of the Engineers, record testimony shows that the Engineers pres- sured the general contractor to have Dentinger change the assignment or lose the subcontract. Accordingly, we fmd that Dentinger's preference and past practice favor the award to employees represented by the Laborers. 3. Area practice Hutter indicates that if mason -tending forklift work were performed by individuals Hutter em- ployed directly, Hutter's preference would be, as its practice in most cases has been, to have the la- borers perform mason-tending forklift work. The practice of Hutter and Dentinger is consistent with the assignment of contractors doing masonry con- struction throughout Wisconsin. Fifty to 60 percent of general contractors performing masonry work in Milwaukee and its environs use laborers to run their forklifts. In the remaining counties, 90 percent of masonry subcontractors assign their forklift work to laborers . When an engineer has performed the disputed work, he has done so because he was already on the job and was not at the time needed to run other equipment. Accordingly, we fmd that area practice favors an award to employees repre- sented by the Laborers. 4. Relative skills No special skills are required of the employees who operate the mason-tending forklift and mem- bers of both the Laborers and the Engineers are qualified to perform the work in dispute. Accord- ingly, we fmd this factor does not favor an award to employees represented by either Union. 5. Economy and efficiency of operations The typical work crew includes five masons and three laborers. When the forklift is not in oper- ation, mason-tenders must also mix mortar, move scaffolding, and perform utility duties and cleanup, all tasks that are outside the Engineers' jurisdiction. The addition of an Engineers-represented employee would expand the crew to five masons, three labor- ers, and one engineer, thus increasing costs without adding any productivity . Accordingly, this factor favors awarding the work to employees represent- ed by the Laborers. 6. Arbitration awards Hutter and the Engineers in urging awarding the work to members of Laborers and Engineers, re- spectively, each rely on different arbitration deci- sions to support their contentions regarding the de- termination of this dispute. We note, however, that not all the parties to the instant proceeding partici- pated in either arbitration proceeding or agreed to be bound by the results. Accordingly, the arbitra- tors' awards are not binding on the Board.2 Conclusions After considering all the relevant factors, we conclude that employees represented by the Labor- ers' International Union, Local 1086, AFL-CIO, are entitled to perform the work in dispute. We reach this conclusion relying on the preferences and past practices of the Employers and area prac- 2 Longshoremen ILWU (Brady-Hamilton Stevedore Co.), 244 NLRB 275, 276 Si. 6 (1979). 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tices and economy and efficiency of operation. In making this determination, we are awarding the work to , employees represented by the Laborers' International Union, Local 1086, AFL-CIO, not to that Union or its members. Hutter contends, and the Laborers concurs, that the Board should issue a broad award to employees the Laborers represent on jobsites throughout the State. We conclude that a broad order is not war- ranted. The Engineers did not engage in threats of picketing or picketing; rather, it was the Laborers who threatened to picket and picketed to maintain assignment of the disputed work to employees it represents. In these circumstances there is no basis for extending the determination beyond the par- ticular controversy that gave rise to the proceed- ing. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Bill Dentinger, Inc., represented by Laborers' International Union, Local 1086, AFL-CIO, are entitled to perform the mason-tend- ing forklift work at the Medium Security Prison project in Oshkosh, Wisconsin.