Masonry Magazine January 1977 Page. 35
MCAA
Information...
UNITED STATES OF AMERICA
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
227 NLRB No. 24
D-1861
Totowa, N.J.
IACONO CONSTRUCTION COMPANY, INC.
and
LOCAL 825-A, B, C, AND D
INTERNATIONAL UNION OF
OPERATING ENGINEERS
and
LOCAL 239, LABORERS INTERNATIONAL
UNION OF NORTH AMERICA
Case 22-CD-296
Decision and Determination of Dispute
This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Iacono Construction Company, Inc., herein called Iacono or the Employer, alleging that Local 825-A, B, C, and D, International Union of Operating Engineers, herein called Operating Engineers, has violated Section 8(b) (4) (D) of the Act.
A hearing was held before Hearing Officer Gregory M. Burke, in August 1976, in Newark, New Jersey. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the parties were given an opportunity to file briefs; however, no briefs were filed.
Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The rulings of the Hearing Officer are free from prejudicial error and are hereby affirmed. Upon the basis of the entire record in this case, the Board makes the following findings:
1. Business of the Employer
The parties stipulated, and we find, that Iacono is a New Jersey corporation engaged in the business of building and construction. Iacono stipulated to the purchase of goods from outside the State of New Jersey of an amount in excess of $50,000 during the preceding 12 months. Accordingly, we find that 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 Operating Engineers and Local 239, Laborers International Union of North America, herein called Laborers, are labor organizations within the meaning of Section 2(5) of the Act.
III. The Dispute
# A. The Background Facts
During the period in question, the Employer, pursuant to an oral subcontract, was performing certain masonry work for Herrod Construction in the Borough of Totowa in the State of New Jersey. The Employer is a member of the Building Contractors Association of New Jersey which has a collective-bargaining agreement with the Laborers. The Building Contractors Association of New Jersey is a member of the Mason Contractors Association of North America which has a contract with the Laborers International Union of North America. Pursuant to the aforementioned contracts, which were both in effect during the period in question, the Employer has generally assigned the work involving operation of the forklift to transport masonry materials, the work in dispute, to employee members of the Laborers.
On or about May 15, 1976, the Employer commenced performing masonry work at the Totowa, New Jersey, jobsite. Sometime in June, a representative from the Operating Engineers came onto the jobsite and tried to get the Laborers to stop operating the forklift machine as he contended that the operation of said machine was operating engineers' work. A few days later, the Operating Engineers threatened to picket the job if the operation of the forklift was not assigned to employees represented by it.
The Operating Engineers submitted the dispute involved herein to the Impartial Jurisdictional Disputes Board, herein called the Disputes Board. When Iacono became aware of the fact that the issue had been submitted to the Disputes Board, it wrote a letter to the chairman of the Disputes Board informing him him that Iacono did not have a contract with the Operating Engineers and that it had not stipulated that the Disputes Board would have authority to settle jurisdictional disputes. In the letter Iacono further stated that, if any decision is made by the Disputes Board contrary to Iacono's present assignment, it would not abide by the decision.
By letter dated June 25, the Disputes Board decided the instant dispute by awarding the operation of the "Lull" forklift to employee members of the Operating Engineers. The Operating Engineers, on July 2, began picketing the Totowa jobsite with signs saying they were picketing Iacono because it did not abide by the award issued by the Disputes Board. Iacono was able to continue performing its contract with Herrod Construction for about a week after the picketing began. However, as the Operating Engineers stopped the forklift drivers from unloading masonry materials needed for the masons to continue working, Iacono had to stop working. The picketing at the jobsite continued until Iacono filed the instant charge.
# B. Work in Dispute
The work in dispute is the operation of a forklift to transport and hoist masonry materials.
# C. Contentions of the Parties
Iacono, a member of the Building Contractors Association of New Jersey, herein called the Association, contends that, under the provisions of the agreement between the Association and the Laborers, it is free to assign the operation of the "forklift” to employee members of the Laborers. In support of its contention, Iacono notes that article IV, section (u), of the agreement states that: "When handling materials, laborers will operate and maintain all power equipment claimed by the Laborers International Union of North America, including forklifts, power-buggies and conveyors."
Jacono further contends that the disputed work has traditionally been assigned to employees represented by the Laborers, that the Operating Engineers has no claim to the work.