Laborers International Union, Local 1086, Afl--Cio

930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers International Union, Local 1086, AFL- CIO and Par Construction Co., Inc . and Inter- national Union of Operating Engineers, Local 139, AFL-CIO. Case 30-CD-130 September 29, 1989 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY The charge in this Section 10(k) proceeding was filed on March 31, 1989, by the Employer, Par Construction Co., Inc. (Par), alleging that the Re- spondent, Laborers Local 1086 (Local 1086), vio- lated Section 8(b)(4)(D) of the National Labor Re- lations Act by threatening to engage in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Operating Engineers Local 139 (Local 139). The hearing was held June 5 , 1989, before Hearing Officer Gerald McKinney. Local 1086 and Local 139 filed post- hearing briefs. 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 Par Construction Co., Inc ., a Wisconsin corpora- tion, is a construction firm engaged in masonry subcontracting with its principal office in Malone, Wisconsin . It annually purchases and receives goods and materials valued in excess of $50 ,000 di- rectly from suppliers located outside the State of Wisconsin . We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 1086 and Local 139 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute In October or November 1988 , general contrac- tor P.G. Miron Construction Company, Inc. (Miron) obtained a bid to perform work at the Na- tional Guard Armory jobsite in Fond du Lac, Wis- consin. Miron subcontracted the masonry work at the Armory site to Par Construction Co., Inc., which assigned the mason-tending forklift duties to employees represented by Local 1086. At a prejob conference between Local 139 Busi- ness Agent David Waite and Miron's president, Gregory Kippenhan, Waite expressed his objection to Par as the masonry subcontractor . Although Kippenhan agreed to get back to Waite to discuss the matter, Kippenhan did not do so. The project began with Par as the masonry subcontractor and with laborers represented by Local 1086 operating the mason-tending forklift. Shortly after the Armory project began, Local 139 filed a grievance against Miron alleging a violation of the subcon- tracting clause in the collective-bargaining agree- ment between those parties because Miron had sub- contracted the masonry work to Par, a nonsigna- tory to the agreement. Waite, Kippenhan, Par's president, James Rosen- thal, and Local 1086 Business Agent Thomas Klein attended a March 22, 1989 meeting, where Waite reiterated his objection to Par as the masonry sub- contractor. Waite reminded Kippenhan that Miron's contract with Local 139 required that he assign operating engineers to his forklifts and that Kippenhan's failure to abide by the contract would result in the grievance that was filed earlier and taken to arbitration. Miron agreed to place one of its operating engineers on the forklift and to pay an engineer on the out-of-work rolls back wages and fringe benefits for having violated the contract. After this meeting concluded, Local 1086 sent a letter notifying Par and Miron that "we will take such action as necessary to enforce our contract with Par Construction, Inc. We will strike and picket in order to preserve our work on this project." A strike by Local 1086 was averted be- cause Miron agreed to keep the operating engineer assigned to the forklift on its own payroll, thus avoiding the displacement of a laborer from the Par work crew. All mason-tending forklift work at this jobsite has since been completed. B. Work in Dispute The disputed work involves the mason -tending forklift work that was assigned to employees repre- sented by the Laborers by Par Construction Co., Inc., the masonry subcontractor for P. G. Miron Construction Company, Inc., on the National Guard Armory project in Fond du Lac, Wisconsin. C. Contentions of the Parties Both Par and Miron contended at the hearing that the mason-tending forklift work should be awarded to employees represented by Local 1086, based on employer preference, economy and effi- ciency, and collective-bargaining agreements. Local 1086 also contends that the employees it represents have a contractually based claim for the 296 NLRB No. 119 LABORERS LOCAL 1086 (PAR CONSTRUCTION) 931 work in dispute and are preferred by Par and Miron, and that these factors, combined with in- dustry and area practice, operational efficiency, and skill and training, require an award of the work to employees it represents. Local 1086 also seeks a broad order covering the work in dispute at all jobsites of the Employer within the common ge- ographic jurisdictions of Local 1086 and Local 139. Local 139 contends that no jurisdictional dispute exists because the work in dispute has ceased, the picketing and strike activity threatened by Local 1086 never materialized, and Local 139's contrac- tual grievance against Miron for allegedly violating the subcontracting clause did not constitute a claim to the work in dispute. In addition, Local 139 con- tends that the factors of Miron's past practice, areawide industry practice, and its collective-bar- gaining agreement with Miron favor an award of the work in dispute to employees it represents by that Union. 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 voluntary adjustment of the dispute. In a letter dated March 22, 1989, Local 1086 no- tified Par and Miron that if the disputed work was assigned to an employee represented by Local 139 it would "take such action as necessary to enforce our contract with Par Construction, Inc." Such action expressly included picketing and a strike. We find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred," 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 properly 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 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 ' We find that the settlement of Local 139's grievance against Miron by the actual reassignment of the mason -tending forklift work to an oper- ating engineer on Miron 's payroll belies Local 139's contention that the filing of the grievance protesting Miron's subcontracting of work to non- signatory Par was not a claim for the work in dispute . We also reject Local 139's argument that no jurisdictional dispute exists because the work in dispute has ceased. "['iihe mere fact that disputed work has been completed does not render a jurisdictional dispute moot where nothing indicates that similar disputes are unlikely to recur " Operating Engineers Local 150 (Martin Cement), 284 NLRB 858 fn. 4 (1987) 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 Par has recognized and bargained with Local 1086 since 1983. Par is signatory to a collective- bargaining agreement with Local 1086 that is effec- tive from June 26, 1987, to May 31, 1990. Jurisdic- tional provisions in this contract include mason- tending forklift operations. Par is not a party to a collective-bargaining agreement with Local 139. Miron is a member of the Wisconsin Chapter, Associated General Contractors of America, Inc. (AGC). Miron has had a collective-bargaining rela- tionship with Local 139 since 1978. The current contract between Miron and Local 139 runs from June 1, 1987, to May 31, 1990, and contains juris- dictional provisions for mason-tending forklift work. Miron is also a party to the aforementioned Local 1086 collective-bargaining agreement. Evidence concerning this factor indicates that the forklift operation is within the work jurisdic- tion of both Unions. We therefore find that this factor does not favor an award to employees repre- sented by either Union.2 2. Company preference and past practice Since 1983 Par has assigned mason-tending fork- lift work to the Laborers and has expressed a pref- erence to assign this work to the Laborers when- ever possible. Accordingly, we find that Par's pref- erence and past practice favor awarding the work in dispute to employees represented by Local 1086. 3. Area practice Miron indicates that if mason-tending forklift work were performed by individuals Miron em- ployed directly, Miron's preference would be, as its practice in most cases has been, to have the labor- ers perform mason-tending forklift work. The prac- tice of Miron and Par is consistent with the assign- ment of contractors doing masonry construction throughout Wisconsin. When an engineer has per- formed 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 find that area practice favors an award to employ- ees represented by Local 1086. 2 Laborers Local 1086 (Denrtnger. Inc), 282 NLRB 633, 635 (1987) 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. Relative skills No special skills are required of the employees who operate the mason-tending forklift and both laborers and operating engineers are qualified to perform the work in dispute . Accordingly, we find this factor does not favor an award to employees represented by either Union. 5. Economy and efficiency of operations The Employer's typical work crew includes seven bricklayers and three laborers . When the forklift is not in operation, mason-tenders must also mix mortar, move scaffolding, and perform utility duties and cleanup, all tasks that are outside the ju- risdiction of operating engineers represented by Local 139. The addition of an operating engineer to the masonry work crew would thus increase the Employer's costs, provide no increase in productiv- ity, and leave the operating engineer with nothing to do during the approximately 4 hours a day when the mason-tending forklift was not in operation. Accordingly, this factor favors awarding the work in dispute to employees represented by Local 1086. Conclusions After considering all the relevant factors, we conclude that employees represented by Laborers International Union, Local 1086, AFL-CIO are en- titled to perform the work in dispute. We reach this conclusion relying on the preference and past practices of the Employer, area practice, and econ- omy and efficiency of operations. In making this determination, we are awarding the work to em- ployees represented by the Laborers International Union, Local 1086, AFL-CIO, not to that Union or its members. Local 1086 contends that the Board should issue a broad award covering the work in dispute at all jobsites of the Employer within the common geo- graphic jurisdiction of Local 1086 and Local 139. We conclude that a broad order is not warranted. Local 139 did not engage in threats of picketing or picketing; rather, it was Local 1086 who threat- ened to picket and strike to maintain assignment of the disputed work to employees it represents. In these circumstances, there is no basis for extending the determination beyond the particular controver- sy that gave rise to the proceeding.3 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Par Construction Co., Inc. repre- sented by Laborers International Union, Local 1086, AFL-CIO are entitled to perform the mason- tending forklift work at the National Guard Armory project in Fond du Lac, Wisconsin. ' Laborers Local 1086 (Dentinger. Inc.), supra at 636