Masonry Magazine June 1981 Page. 24
MCAA INFORMATION
continued from page 23
The Ironworkers picketed the project carrying signs which stated, "Fabcon is working on this job in violation of Area Standards Local Union 393 AFL-CIO. This sign is not directed at the Employees of this Company or the Employees of any other Employer servicing this job, but solely at the public." The jobsite was closed down that day and the Employer's crew did not return to the project until November 6. It was unable to perform any work that day because pickets were still at the jobsite and the crane operator hired by the Employer refused to cross the picket line. Thereafter, the general contractor set up a reserved gate for the Employer's employees. The Employer returned to the project on November 7 and continued to perform the work in dispute. At some point thereafter, the picketing ceased. The Employer has since completed its work on the project.
C. Contentions of the Parties
The Employer contends that the work in dispute was properly assigned to employees represented by the Bricklayers and the Laborers on the basis of collective-bargaining agreements, its preference and past practice, skills, and efficiency and economy of operation.
The Ironworkers contends that there is an agreed-upon method for the voluntary adjustments of the dispute. It further contends that factors of skill, safety, efficiency of operation, and area practice favor awarding the disputed work to employees represented by the Ironworkers.
D. Applicability of the Statute
Before the Board may proceed with a determination of a dispute under 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 there is no agreed-upon method which is binding on all parties for the voluntary adjustment of the dispute.
The record shows that the business agent for the Ironworkers and the members of the local Building and Trades Council demanded that the Employer include an ironworker in its crew and that the Employer refused. Subsequently, the Ironworkers threatened to picket and actually did picket against the Employer at the VWR jobsite. Although the picket signs referred to the Employer's alleged failure to observe area standards, we find from the record as a whole that an object of the Ironworkers' threats and picketing was to force or require the Employer to assign the work in dispute to employees represented by the Ironworkers.
The record also shows that the Employer is not a party to an agreed-upon method for the voluntary adjustment of jurisdictional disputes. The Bricklayers, Laborers, and Ironworkers are apparently subject to the authority of the International Jurisdictional Disputes Board of the Building and Trades Council. The contracts, however, between the Employer and the Bricklayers and the Laborers are silent with respect to any method for resolving work disputes.
Based on the foregoing, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there is no agreed-upon method for the voluntary settlement of the work 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 to the Dispute
Section 10(k) of the Act requires the Board to make an affirmative award of the 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 commonsense and experience reached by balancing the factors involved in a particular case.
The following factors are relevant in making the determination of the dispute before us.
1. Certification and collective-bargaining agreements
There are no Board certifications of any of the unions involved in the dispute. The Employer has had a series of collective-bargaining agreements with the Bricklayers and the Laborers. The current agreements with the two unions specifically discuss the work in dispute herein. The Employer has also executed agreements with the Chicago area locals of the Bricklayers and Laborers Unions which state that any bricklayer or laborer would be paid the local area wage rates. The Employer does not have a contract with the Ironworkers. We therefore find that the Employer's collective-bargaining agreements with the Bricklayers and Laborers favor awarding the work in dispute to employees represented by those two Unions.
2. Employer's assignment and past practice
The Employer, in accordance with its preference, assigned the work in dispute to employees represented by the Bricklayers and the Laborers. Further, the record indicates that since its inception in 1971 the Employer has always assigned such work to integrated crews of bricklayers and laborers. In International Association of Bridge, Structural and Ornamental Ironworkers, Local No. 563, AFL-CIO (Fabcon, Incorporated). 211 NLRB 736 (1974), and in Local 512, International Association of Bridge. Structural and Ornamental Ironworkers. AFL-CIO (Fabcon. Incorporated), 203 NLRB 1017 (1973), the Board resolved similar work disputes in Minnesota by awarding the work to the Employer's employees, who were represented by the Bricklayers and the Laborers, when such work was also claimed by a different local of the Ironworkers Union. Accordingly, we find that the Employer's assignment and past practice favors awarding the work to employees represented by the Bricklayers and the Laborers.
3. Area and industry practice
The Ironworkers business agent. Treest, testified that whenever concrete erection work has been done in the Chicago area, ironworkers have been assigned to the crew to perform the work of welding, rigging, and the removal of temporary shores. He stated that these assignments conformed to the 1954 and 1962 agreements between the Internationals of the Bricklayers and Ironworkers Unions. On the other hand, the business manager for the local Bricklayers Union testified that crews composed of bricklayers and laborers performed most of the precast cement work done in the area. It does not appear from the record as a whole, therefore, that area practice favors awarding the disputed work to employees represented by the Bricklayers and the Laborers or to employees represented by the Ironworkers.
With respect to industry practice, the record indicates that the Employer's crews of bricklayers and laborers have performed the work in dispute in seven States. In addition, the vice president of the 1,500-member Mason Contractors Association of America testified that the Association had agreements with both the Bricklayers and the Laborers Union to assign the erection of precast and prestressed concrete panels to crews of bricklayers and laborers. He also testified that the 1954 and 1962 agreements between the Internationals of the Bricklayers and Ironworkers did