Masonry Magazine July 1972 Page. 16
MCAA Information
C. Contention of the Parties
The Employer contends that the laborers possess the requisite skills and it has been its practice to have employees represented by Laborers perform the disputed work. The Employer further avers that its collective-bargaining agreement with the Laborers calls for members of the Laborers to do the work; and that it would be inefficient and uneconomical for the Employer to hire carpenters since it has no carpenters on its payroll nor are carpenters needed in the ordinary course of the masonry business. Finally, the Employer denies that it is bound by the award of the National Joint Board.
The Carpenters contend that the Employer assigned the work to the Carpenters and became bound by the Carpenters collective-bargaining agreement when Richard Whited, the Employer's jobsite forman, hired Fred Koeck, a member of the Carpenters. It further contends that the Carpenters collective-bargaining agreement obligates the Employer to the jurisdiction of the National Joint Board and that the National Joint Board awarded the disputed work to the Carpenters on November 15, 1971. Finally, the Carpenters contend that safety and skill factors, area and industry practice, and the efficiency and economy of the Employer's operation favor it.
The Laborers predicates its claim for the disputed work on its collective-bargaining agreements with the Employer, on its contention that laborers possess the requisite skills and that laborers can more efficiently and economically perform the work. It also contends that area practices and the assignment of the Employer favor it. Finally, it denies that it is bound by a National Joint Board award relative to the disputed work here.
D. Applicability of the Statute
The charges herein allege a violation of Section 8(b)(4)(D) of the Act. The parties stipulated that on "Saturday, October 23, 1971, between the hours of 7:00 and 9:00 a.m., at the job site approximately fifteen members of Carpenters picketed with signs reading 'On Strike.' The picketing was conducted for the purpose of requiring [Employer] to assign the disputed work to members of Carpenters. On the basis of the entire record and the stipulation, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination under Section 10(k) of the Act.
E. The Merits of the Dispute
As the Board stated in J. A. Jones Construction Company, we shall determine the appropriate assignment of disputed work in each case presented for resolution under Section 10(k) of the Act only after taking into account and balancing all relevant factors.
1. Collective-bargaining agreements
The Employer is a member of the Mason Contractors Association of America which has a current collective-bargaining agreement with the Laborers' International Union of North America with which the Laborers is affiliated. The Employer is also a party to a collective-bargaining agreement with the Laborers. Pursuant to the aforesaid agreements, the Employer has assigned employees represented by Laborers to perform the erection of the scaffolding. The Employer does not have a contract with the Carpenters. The collective-bargaining agreements between the Laborers and the Employer are sufficiently broad to cover the disputed work. Accordingly, we find that the collective-bargaining agreements favor the Laborers.
2. Employer preference
The Employer assigned the work in dispute, and prefers an award, to employees represented by the Laborers. This factor favors an award to employees represented by the Laborers.
3. Economy and efficiency of operation
The Employer contends that laborers can perform the disputed work more economically and efficiently than carpenters. The record shows that the metal tubular scaffolding is erected as the masonry work progresses and that the time spent erecting the scaffolding is minimal. On the other hand, Morgen scaffolding is erected at one time and is raised and lowered at different intervals as the work of the masons progresses. Therefore, laborers assigned the work are also available to assist the masons, performing such tasks as stacking bricks and mixing mortar. Moreover, the use of carpenters on scaffolding over 14 feet high would necessarily require that the Employer hire carpenters, there being none presently on the Employer's payroll. Consequently, hiring carpenters to erect scaffolding would result in the accumulation of idle time and increased costs during the time the masonry work is being done. Accordingly, we find that economy and efficiency of the Employer's operation favors the assignment of laborers to perform the disputed work.
4. Skills and work involved
In support of its assertion that carpenters possess skills and training for the work here in dispute which laborers do not, the Carpenters presented testimony which suggests that various federal and state safety codes are not being complied with in the erection of scaffolding at the construction site. Certainly the safe construction of scaffolding is important, but there is no showing that any violations of safety standards which may here exist is attributable to the differing skills of carpenters and laborers. On the basis of the entire record, we are not persuaded that skills peculiar to carpenters are required in the erecting and dismantling of scaffolding or that laborers are not themselves qualified and competent to do the work. Rather, we find that laborers and carpenters both possess the requisite skills to perform the disputed work. Accordingly, we find that this factor favors neither the Laborers nor the Carpenters.
5. Area practice
The record presents a mixed picture about the area practices relative to the disputed work. Apparently general contractors use carpenters to erect and dismantle scaffolding. Masonry subcontractors, on the other hand, use laborers exclusively on approximately 50 percent of the jobs involving the disputed work and mixed crews (80 percent laborers and 20 percent carpenters) on the remaining jobs. Louis Hajdu, the general contractor for the Mobil job, testified that a "horse-trade" practice prevails; i.e., masonry subcontractors use carpenters when pressured to do so. The Employer, a masonry subcontractor, has used carpenters on only one other job in Warren County in the past 5 years. While the area practice by masonry subcontractors relative to the disputed work is not uniform, it tends to show that laborers perform such work for masonry subcontractors more than carpenters. Accordingly we find that, while area practice does not unequivocally require an award of the disputed work to the Laborers, it tends to support such an award.
Other factors considered by the Board in jurisdictional dispute cases provide little assistance in determining the instant dispute. Neither of the Unions involved here has been certified by the Board, nor is there evidence indicating that a Board certification covers the disputed work. The National Joint Board decision, relied on by the Carpenters in support of its claim, is not binding on the Employer, who as noted has not agreed.
The hiring of one carpenter for 2 days did not constitute an assignment to the Carpenters.
The Carpenters does not claim the work of operating the Morgan scaffolding after its erection, which work operation is done by the Laborers here.