Masonry Magazine September 1981 Page. 14
MCAA INFORMATION
continued from page 13
The work to employees represented by the Laborers by letter dated September 5. On or about September 10, the Local 1485 business representative called the International and asked it to try to resolve the dispute over the scaffolding. An International representative came to the area and met with a representative of the Laborers International. Each organization claimed the scaffolding work, and the matter was not resolved.
The laborers completed erection of the scaffold, and carpenters worked on the site without incident until October 8. During at least some of the time preceding October 8, carpenters used the scaffold while performing carpenter work.
On October 8, the carpenters on the job refused to perform any work requiring use of the scaffold. The Employer reassigned the carpenters to work on the ground and laid off three of the seven carpenters for lack of ground work. On October 9, the Employer's president met with the carpenters at the site and asked them to go on the scaffold. He stated if they did not, it would be necessary to replace them. On October 10, the president again asked the carpenters to perform work requiring the use of the scaffold. They refused and were laid off.
According to witnesses presented by the Employer, the carpenters left the scaffold because of the dispute over its erection, and agents of Local 1485 indicated that the International had directed the action. According to witnesses presented by the Respondents, the carpenters left the scaffold for safety reasons, and no reference was made to the International.
The week following October 10, the Employer hired three carpenters. One, who was employed as foreman, was a union member: the other two were not union members.
Agents of Local 1485 and of the District Council visited the jobsite on several occasions between October 15 and October 27. There is conflicting testimony as to what occurred during these visits. According to the testimony of the employer's witnesses, the foreman was refused a union permit; the superintendent was threatened that union charges would be brought against him; the foreman and the superintendent were threatened with physical harm; and the nonunion carpenters were told they could "get in trouble." The Respondents' witnesses denied threatening physical harm, denied refusing the foreman a permit, and explained that they simply reminded the superintendent and foreman of union bylaws and possible penalties for violating the bylaws.
On October 27, the nonunion carpenters quit work, and, so far as the record shows, the Employer had no carpenters on the jobsite after that time. On October 30, the Employer called the office of the International in Washington. D.C., to discuss the problem. A person to whom he attempted to explain the situation asked why the Company had assigned the work to the Laborers, declared it was carpenters' work, and remarked, "No wonder you got a problem."
B. The Work in Dispute
The work in dispute involves the erection of Morgen scaffolding at the Employer's construction site at Michigan City, Indiana.
C. Contentions of the Parties
The Employer contends that the Respondents have induced its carpenter employees to refuse to perform work requiring use of the scaffold at Michigan City, with an object of forcing the Employer to assign the disputed scaffolding to work to employees represented by the Respondents. It also asserts that the Respondents have engaged in threatening and harassing tactics to enforce the work stoppage. With respect to assignment of the disputed work, the Employer argues that relevant factors support assignment to employees represented by the Laborers. The Employer emphasizes employer preference and practice, economy and efficiency, and the laborers' extensive experience and familiarity with the type scaffolding being used. It points out that the Laborers' jurisdictional guidelines, referred to in the Laborers' bargaining contract, specifically asserts jurisdiction over "Morgen" scaffolding.
The Respondents take the position that the carpenters left work at Michigan City because of safety considerations. With respect to the work assignment, they argue that the work requires the basic tools, skills, and experience of carpenters to assure safety, and that carpenters can perform the work more efficiently. They maintain that past jurisdictional decisions, particularly a basic 1920 decision of the National Joint Board for Settlement of Jurisdictional Disputes, support their position. In addition, they submit that the award in this case should not be limited to the present site, but should also apply to future construction sites.
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 there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dispute.
Testimony was presented in this case that under the leadership of Local 1485 the carpenters left the scaffold on October 8 because of the dispute as to who should erect the scaffolding, and that agents of the District Council threatened employees in support of the work stoppage. Conflicting testimony was also presented, but it is unnecessary to resolve the question of credibility in order to proceed to a determination of the dispute. In a 10(k) proceeding the Board is not required to find that the unfair labor practice alleged has occurred, but need only find that reasonable cause exists to believe that there has been a violation of Section 8(b)(4)(D). The Board may consider contradicted testimony in finding reasonable cause.
The Employer and the Respondents stipulated that there is no agreed-upon method for resolving the dispute.
On the basis of the entire record, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this 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 giving due consideration to various factors. The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common-sense and experience reached by balancing those factors involved in a particular case.