Masonry Magazine January 1977 Page. 36
MCAA Information
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and that Iacono has not agreed to be bound by the decisions of the Disputes Board.
The Laborers contends that it entered into a valid collective-bargaining agreement with Iacono to perform the work in dispute, that the work is traditionally assigned to laborers, and that the Operating Engineers has no claim to the work.
The Operating Engineers maintains that all forklift work is properly assigned only to operating engineers and, further, that the Disputes Board has awarded the work in dispute to the employee members of the Operating Engineers.
D. Applicability of the Statute
Before the Board may proceed with a determination of a 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. The record indicates that in June the Operating Engineers tried to get the Laborers to stop operating the forklift machine and threatened to picket Iacono if the operation of said machine was not assigned to operating engineers. On July 2, the Operating Engineers picketed the construction site on which Iacono was working. The purpose of the picketing was to force Iacono to abide by an award of the Disputes Board which assigned the work to employee members of the Operating Engineers. At the hearing, the Laborers claimed the disputed work.
Based on the evidence presented, we conclude that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred and the dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after taking into account
1. Certification and Collective-Bargaining Agreement
There has been no evidence that the labor organizations involved herein have been certified by the Board, nor is there evidence indicating that a Board certification covers the disputed work.
Iacono is a member of the Building Contractors Association of New Jersey which has a contract with the Laborers. The work in dispute herein is covered by the contract with the Laborers. We therefore find that the contract with the Laborers favors Iacono's assignment.
2. Company and Area Practice
Iacono presented evidence that over the past 20 years in which it has been in operation, laborers have historically operated the forklift on a job assisting masons.
Iacono presented a list containing the jobs it performed over the past 10 years on which laborers operated the forklift machine. Testimony from other masonry contractors indicates that the area practice is to assign the operation of the forklift to laborers.
We find therefore that this factor tends to favor awarding the disputed work to employees represented by the Laborers.
3. Skills, Efficiency, and Economy of Operation
The record indicates that forklift operators are not required to be licensed. However, there is some indication that forklift operators receive special training and that Iacono hires an operator because of his training and experience. Iacono contends that it is more economical to assign the operation of the forklift to laborers rather than to operating engineers because, when the forklift is not in operation, the laborers can assist the masons in the performance of their work whereas engineers will not.
Further, Iacono contends that laborers are more experienced in operating the forklift on mason jobs and that they are more familiar with masonry terms. In addition to operating the forklift, the laborers operate "mixing machines" on masonry jobs.
We conclude that the factors of skill, efficiency, and economy of operation strongly favor the award of the disputed work to the employees represented by the Laborers.
4. The Disputes Board Award
Although we do not consider the Disputes Board award of the work binding on Iacono, we do consider it as a factor in determining the proper assignment of the work in dispute. However, in view of the fact that Iacono never contracted to permit the Disputes Board to settle jurisdictional disputes, we are of the opinion that the Disputes Board award should not be given controlling weight herein.
We thus find that this factor favors neither the Laborers nor the Operating Engineers.
Conclusions
Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees who are represented by the Laborers are entitled to the work in dispute. In reaching this conclusion, we have particularly relied on the Employer's assignment of the work to its employees; the fact that its assignment is consistent with past area practice and the Employer's collective-bargaining agreement with the Laborers; the fact that the Laborers-represented employees possess the requisite skills to perform the work; and the efficiency and economy of operation which result from such assignment. We shall, therefore, determine the dispute before us by awarding the work involved herein to those employees represented by the Laborers, but not to that Union or its members.
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