Operating Engineering Local Nos. 77, et al.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local Nos. 77, 77-A, 77-RA, 77-B, 77-C, 77-D, AFL-CIO and Bricklaying, Inc. and Laborers' International Union of North America, Local Union 74, AFL-CIO. Case 5-CD-261 September 11, 1980 DECISION AND DETERMININATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Bricklaying, Inc., herein called the Employer, alleging that International Union of Operating Engineers, Local Nos. 77, 77- A, 77-RA, 77-B, 77-C, 77-D, AFL-CIO, herein called the Respondent or the Engineers, had violat- ed Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forc- ing or requiring the Employer to assign certain work to its members rather than to employees rep- resented by Laborers' International Union of North America, Local Union 74, AFL-CIO, herein called the Laborers. Pursuant to notice, a hearing was held before Hearing Officer Robert L. Clayton on June 26 and 30 and July 1, 1980. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. 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, a Delaware corporation with its principal place of business in Brentwood, Maryland, is en- gaged in the business of general masonry construc- tion. During the past year, the Employer pur- chased finished products from outside the State having a value of $50,000. The parties also stipulat- ed, 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 En- gineers and the Laborers are labor organizations within the meaning of Section 2(5) of the Act. I The name appears as amended at the hearing. 252 NLRB No. 16 III. THE DISPUTE A. Background and Facts of the Dispute The Employer is engaged in the masonry con- struction business in the Washington, D.C., area. The Employer has a subcontract with Baltimore Contractors, Inc., to perform certain masonry work at the Dirksen Senate Office Building in Washing- ton, D.C. The Employer is signatory to a collec- tive-bargaining agreement between Construction Contractors Council-AGC Labor Division, Inc., herein called CCC, and the Laborers. 2 In addition, through its membership in the Mason Contractors Association of America and the Mason Contractors Association of the District of Columbia, the Em- ployer is contractually obligated to the collective- bargaining agreement between these employer or- ganizations and the Laborers' International Union. There is also in effect a collective-bargaining agreement between the Engineers and CCC, which the Respondent contends, but the Employer denies, is binding on the Employer. Both CCC contracts contain provisions that require signatory employers to assign the disputed work (operation of forklifts) to the respective Unions. The Engineers-CCC con- tract contains a provision which provides that any jurisdictional dispute shall be submitted to the Im- partial Jurisdictional Disputes Board, herein called the IJDB, for settlement in accordance with the plan adopted by the Building and Construction Trades Department, AFL-CIO, herein called the BCTD. The Employer's contracts with the Labor- ers do not contain such a provision. Pursuant to its contract with the Laborers and consistent with its past practice, the Employer as- signed the disputed work to employee members of the Laborers. As of May 1980, the Employer em- ployed approximately 21 employees, of whom 13 were members of the Laborers, 7 were members of Bricklayers Local Union No. 6, and 1 was a member of the Engineers, and operated a hoist. Employee members of the Engineers and the La- borers also were employed by other employers on the jobsite, including Dan LaPore & Sons, subcon- tractor, and J. W. Bateson Co., Inc., contractor, both of whom are signatories to the Engineers- CCC contract. On May 13, 1980,3 the Engineers submitted claims to the IJDB concerning the operation of forklifts for LaPore and Bateson by employee members of the Laborers. On June 2, the IJDB awarded this work to employee members of the Engineers. 2 The Employer is not a member of CCC. 3 All dates are 1980 unless otherwise specified 106 OPERATING ENGINEERS, LOCAL NOS. 77, ET AL. On the morning of June 5, members of the Engi- neers employed by various employers on the job- site engaged in a work stoppage for 1-1/2 to 2-1/2 hours to protest the Employer's assignment of the forklift work to members of the Laborers. 4 The Engineers members subsequently returned to work and there has been no further work stoppage at the site. On June 23, the Engineers submitted a claim to the IJDB concerning the Employer's assignment of the disputed work to employee members of the La- borers and on July 11, the IJDB awarded the work to employee members of the Engineers.5 B. The Work in Dispute The work in dispute involves the operation of a forklift which transports and hoists masonry mate- rials in servicing masons employed by the Employ- er at the Dirksen Senate Office Building construc- tion site in Washington, D.C. C. The Contentions of the Parties The Employer contends that the disputed work should be assigned to its employees represented by the Laborers, relying on the collective-bargaining history, employer and area practice, relative skills, and economy and efficiency of operation. The Em- ployer further contends that it does not have a col- lective-bargaining agreement with the Engineers and that there is no mutually agreed-upon method for voluntary adjustment of the dispute. The La- borers agrees that the Employer's assignment of the disputed work is proper and in accord with its collective-bargaining agreements and Employer and area practice. The Respondent takes the position that there is an agreed-upon method for voluntary adjustment of the dispute based upon the Engineers-CCC con- tract and the affiliation of both labor organizations with the BCTD. According to the Respondent, the Employer has agreed to be bound by the Engi- ' Although the Engineers members carried no picket signs, distributed no leaflets, and did not expressly state why they were not working, there is no dispute concerning the purpose of the work stoppage and the record clearly establishes that it was to protest the Employer's assign- ment of the disputed work to the members of the Laborers. Thus, the evidence shows that on or about June 4, 2 days after the IJDB had awarded the LaPore and Bateson forklift work to members of the Engi- neers, representatives of the Engineers indicated to Baltimore Contractors that the Engineers was claiming the forklift work performed by the Em- ployer. In addition, on this same date and apparently in response to con- versations between Engineers' and Baltimore Contractors' representa- tives, Baltimore Contractors contacted the Employer and requested that it not use employee members of the Laborers to operate its forklifts. Fi- nally, the Respondent does not contend that there is not reasonable cause to believe that Sec. 8(b)(4XD) has been violated. 5 The IJDB decision issued after the hearing in this case closed. How- ever, at the hearing, the Respondent requested that the decision become a part of the record, and it attached a copy to its brief. No party objected to receipt of this decision. neers-CCC contract. Alternatively, the Respondent contends that the work should be assigned to it based on collective-bargaining history, industry and area practice, awards of the IJDB, interunion agreements, and economy and efficiency of oper- ation. 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 (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and (2) that the parties have not agreed upon a method for the voluntary adjustment of the dispute. 1. It is clear that the Respondent engaged in a work stoppage at the jobsite and that such work stoppage was to protest the Employer's assignment of the disputed work to employee members of the Laborers. 6 Accordingly, we find that reasonable cause exists to believe that the Respondent violated Section 8(b)(4)(D) of the Act. 2. Before the Board will defer to an agreed-upon method for settlement of a dispute, the agreement must bind all the parties, including the Employer.7 Although both Unions are bound to the IJDB by virtue of their membership in the BCTD, it is un- disputed that neither the Employer's contracts with the Laborers nor its subcontract with Baltimore Contractors contains a clause obligating the Em- ployer to submit jurisdictional disputes to the IJDB. The Engineers-CCC contract does contain such a clause and the Respondent contends that the Employer is bound to this agreement. We do not agree with the Respondent's contention. According to the Respondent, the Employer signed a memorandum agreement on October 2, 1961, pursuant to which it agreed to be bound to the then current Engineers-CCC contract. It fur- ther contends that that contract contained an auto- matic renewal clause and that the Employer has never given the contractually required notice of termination. Thus, the Employer is bound to the current contract, which is a successor to the 1961 agreement. The Respondent did not produce the alleged memorandum agreement, claiming that its pre-1975 files had been lost or destroyed, but bases its claim on a file index card which indicates that such an agreement exists. The Respondent further contends that the Employer's conduct since at least 1976 in adhering to the terms of the Engineers- CCC contract as to engineers it employs manifests 6 See fn 4, supra. .¥L.R.B. Plastererr Local Union .%No 79, Operative Plailrers and (ement .Masons' International .4s.tioan. .AFL-CIO (Tras Surat Tile & ie·rrazzo Co.. et al). 404 S 116 (1971) 107 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an intention to be bound to the terms of the con- tract and that, under Board precedent, it should be held to have adopted the contract. The Employer denies ever signing any agree- ment with the Respondent, and we are unable to conclude that the Employer has agreed to be bound to the entire Engineers-CCC contract. Absent production of the alleged signed 1961 memorandum agreement and in light of the Em- ployer's denial that it exists, there is insufficient evidence to establish that the the Employer ever became signatory to the 1961 Engineers-CCC agreement. We are also unable to conclude that the Employ- er has adopted the entire contract by its conduct. The evidence does show that at least since 1976 the Employer has been paying Engineers members it employs the contractual wage rate, has made all trust fund payments to the Engineers various funds as specified in the contract, and has checked off the contractually mandated dues from the Engi- neers employee members' salaries. However, the evidence also shows that over at least the past 5 years, on several occasions, the Employer has re- fused requests made by the Engineers representa- tives that it sign the Engineers-CCC contract, stat- ing it did not want to be bound to the contract in any way. At the same time, the Employer has asked the Engineers representative to sign a "short form" agreement covering wages and fringe bene- fits but excluding any clause obligating it to put an Engineer member on the forklift. In addition, the Employer has consistently negotiated out of any agreement it has signed any clause obligating it to submit jurisdictional disputes to the IJDB, the most recent being its subcontract with Baltimore Con- tractors. It is true, as the Respondent contends, that when an employer manifests through its conduct an in- tention to be bound to the terms of a collective- bargaining agreement it will be held to have adopt- ed that agreement.8 Here, however, although the Employer's conduct in following the terms of the contract with respect to Engineers members it em- ploys strongly suggests an intention to be bound to its terms, it has consistently acted to negate that in- tention at least with regard to the IJDB provision. In addition, its consistent refusal to sign any agree- ment containing an IJDB clause makes it unlikely that it intended to be bound to the Engineers-CCC contract, which does contain such a clause. Accordingly, we find that the Employer has not agreed to be bound by the provisions in the Engi- neers-CCC contract providing for submission of ju- risdictional disputes to the IJDB. On the basis of a See, eg., Vin James Plastering Company, 226 NLRB 125 (1976). the foregoing, we conclude that this dispute is properly before the Board for determination pursu- ant to Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements The Laborers and the Engineers contracts with the CCC contain provisions requiring signatory employers to assign the disputed work to their Union. Although we have found that the Employer has not agreed to be bound by the provision of the contract providing for submission to IJDB on the basis of its consistent disclaimers as to that provi- sion, it is not so clear that it has not agreed to be bound to the rest of the contract. Therefore, as- suming without deciding, in the absence of clarify- ing record evidence, that it may be bound to the assignment-of-work provision of the contract, we find that the contractual assignment factor favors neither Union. Accordingly, this factor does not favor an award to either Union. 2. Employer past practice The Employer has performed numerous masonry subcontract jobs in the Washington, D.C., area. Its uniform practice has been to assign the disputed work to employees represented by the Laborers. Employer practice favors an award to employees represented by the Laborers. 3. Economy and efficiency of operation The record indicates that the forklift is never op- erated for more than 3 or 4 hours each day. When the forklift is not in operation, the Laborers assist the masons in the performance of their work. Engi- neers, on the other hand, do not perform any ma- sonry work. In addition, Engineers are employed on the basis of a guaranteed 8-hour workday and thus would be paid for a considerable amount of idle time. Therefore, both of these factors favor awarding the work to employee members of the Laborers. 4. Employer preference The Employer has assigned the disputed work to employees represented by the Laborers and has ex- pressed its preference that the disputed work be performed by these employees. Employer prefer- 108 OPERATING ENGINEERS, LOCAL NOS. 77, ET AL. ence therefore favors an award to employees repre- sented by the Laborers. Conclusion Upon the record as a whole, and after full con- sideration of all the relevant factors involved, we conclude that employees represented by the Labor- ers are entitled to perform the work dispute. In making this determination, we are awarding the work in dispute to the employees of Bricklaying, Inc., who are represented by the Laborers, but not to that Union or its members. Our determination is limited to the particular dispute which gave rise to this proceeding. DETERMINATION OF 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 Bricklaying, Inc., who are rep- resented by Laborers' International Union of North America, Local Union 74, AFL-CIO, are entitled to perform the work of operating the forklift at the Dirksen Senate Office Building construction site in Washington, D.C. 2. International Union of Operating Engineers, Local Nos. 77, 77-A, 77-RA, 77-B, 77-C, 77-D, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Bricklaying, Inc., to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers, Local Nos. 77, 77-A, 77- RA, 77-B, 77-C, 77-D, AFL-CIO, shall notify the Regional Director for Region 5, in writing, wheth- er or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determina- tion. 109