Masonry Magazine September 1980 Page. 18
MCAA INFORMATION
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 Laborers and on July 11, the IJDB awarded the work to employee members of the Engineers.
B. The Work in Dispute
The work in dispute involves the operation of a forklift which transports and hoists masonry materials in servicing masons employed by the Employer at the Dirksen Senate Office Building construction 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 Employer further contends that it does not have a collective-bargaining agreement with the Engineers and that there is no mutually agreed-upon method for voluntary adjustment of the dispute. The Laborers 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-COC contract and the affiliation of both labor organizations with the BCTD. According to the Respondent, the Employer has agreed to be bound by the Engineers-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 operation.
D. Applicability of the Statute
Before the Board may proceed with a determination 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. 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. Although both Unions are bound to the IJDB by virtue of their membership in the BCTD, it is undisputed that neither the Employer's contracts with the Laborers nor its subcontract with Baltimore Contractors contains a clause obligating the Employer to submit jurisdictional disputes to the IJDB.
4. 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 assignment of the disputed work to the members of the Laborers. Thus, the evidence shows that on or about June 4, two days after the IJDB hod awarded the LaPore and Bateson forklift work to members of the Engineers, representatives of the Engineers indicated to Baltimore Contractors that the Engineers was claiming the forklift work performed by the Employer. In addition, on this same date and apparently in response to conversations between Engineers and Baltimore Contractors representatives, Baltimore Contractors contacted the Employer and requested that it not use employee members of the Laborers to operate its forklifts. Finally, the Respondent does not contend that there is not reasonable cause to believe that Sec. 8(b)(4)(D) has been violated.
5. The IDB decision issued after the hearing in this case closed. However, 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.
6. See fn. 5, supra.
7. N.L.R.B. v. Plasterers Local Union No. 79. Operative Plasterers and Cement Masons' International Association. AFL-CIO (Texas State Tile & Terrazzo Co., et al), 404 U.S. 116 (1971).
8. See, e.g., Vin James Plastering Company, 226 NLRB 125 (1976).
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 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 further contends that that contract contained an automatic 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 an intention to be bound to the terms of the contract and that, under Board precedent, it should be held to have adopted the contract.
The Employer denies ever signing any agreement 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 Employer's denial that it exists, there is insuffient evidence to establish that the Employer ever became signatory to the 1961 Engineers-CCC agreement.
We are also unable to conclude that the Employer 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 Engineers employee members' salaries.
However, the evidence also shows that over at least the past 5 years, on several occasions, the Employer has refused requests made by the Engineers representatives that it sign the Engineers-CCC contract, stating 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 benefits 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 Contractors.
It is true, as the Respondent contends, that when an employer manifests through its conduct an intention to be bound to the terms of a collective-bargaining agreement it will be held to have adopted that agreement. Here, however, although the Employer's conduct in following the terms of the contract with respect to Engineers members it employs strongly suggests an intention to be bound to its terms, it has consistently acted to negate that intention at least with regard to the IJDB provision. In addition, its consistent refusal to sign any agreement 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 Engineers-CCC contract providing for submission of jurisdictional disputes to the IJDB. On the basis of the foregoing, we conclude that this dispute is properly before the Board for determination pursuant 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 provision, it is not so clear that it has not agreed to be bound to the rest of the contract. Therefore, assuming without deciding, in the absence of clarifying record