Masonry Magazine October 1982 Page. 32
NLRB/D.H. JOHNSON CO.
continued from page 31
settlement of a dispute, the agreement must bind all the parties, including the Employer. Assuming arguendo that both Unions are bound to the JCB by virtue of their membership in or affiliation with the CBTC, and that the Employer generally is subject to the terms of the Standard Agreement in jurisdictional work disputes concerning the Engineers by virtue of its 1965 Memorandum of Agreement, nevertheless, it is undisputed that the International Agreement between the MCAA and the Laborers' International Union of North America contains a clause obligating the Employer to submit jurisdictional disputes to the International Office of the Union for resolution and that such procedure is exclusive and supersedes any other procedure delineated in an agreement between a member of the MCAA and any local union. Thus, assuming arguendo that the Laborers, the Engineers, and the Employer all may be found to have committed themselves to the use of the JCB for the resolution of jurisdictional work disputes, the existence of the equally binding, but conflicting, work dispute provision in the MCAA-Laborers' International Agreement precludes a finding of a determinative, agreed-upon method of dispute resolution in the instant case.
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 commonsense and experience reached by balancing those factors involved in a particular case.
The following factors are relevant in making the determination of the dispute before us:
# 1. Collective-bargaining agreements
The Employer has no collective-bargaining agreement with the Laborers. Nevertheless, the Laborers' International Union of North America's agreement with the MCAA was modified on June 1, 1981, to include "forklifts for brick masons" within the work jurisdiction of the members of the Laborers' International Union of North America. Likewise, the agreement entered into between the Mid-American Regional Bargaining Association (as bargaining agent for the BAC) and the Engineers, the terms of which are adopted in the Employer's 1965 Memorandum of Agreement with the Engineers, provides wage rates for brick forklift operation. Because there are conflicting collective-bargaining agreements, both of which indicate that forklift operation is within the work jurisdiction of the respective unions, we find that this factor does not favor an award to employees represented by either union.
# 2. Company past practice
The Employer has performed numerous masonry subcontract jobs in the DuPage and Cook County, Illinois, areas. Although the forklift was not used until August, 1981 on the Centennial project, the Employer has used forklift operators on a number of projects in the past. Record testimony reveals that only employee employees of the Laborers have been utilized for forklift operation on the Centennial project.
While the Engineers contends in its brief to the Board that the Employer "has continuously employed" employees which it represents for forklift operation in the past, record testimony of a company agent reveals that the Employer intermittently used employees represented by both the Laborers and the Engineers for forklift operation in prior construction projects, although the latter have obtained "probably the majority" of the assignments. The same agent testified that he had assigned the forklift work to employees represented by the Laborers whenever possible, except when pressure was applied on the Employer to make an alternative assignment or suffer work strife. Accordingly, we find that the Company's past practice is a neutral factor which does not favor an award to employees represented by either union.
# 3. Relative skills
The record indicates that employees represented by the Laborers require initial instruction by the foreman in order to undertake the task of forklift operation. While members of the Engineers do not require similar instruction, operation of the forklift is simple: it requires only minimal instruction, and there is no evidence showing that the Employer has been dissatisfied with the work performance of the Laborers on the jobsite. Accordingly, this factor does not favor an award to employees represented by either union.
# 4. Economy and efficiency of operation
The record indicates that the forklift is in operation about 3 hours a day on the Centennial project. When the forklift is not in operation, employees represented by the Laborers assist the bricklayers in the performance of their work by mixing mortar, spreading mortar on the mortarboards, cleaning up, or performing miscellaneous tasks. Record testimony conflicts, however, with regard to the willingness of employees represented by Engineers to engage in the aforementioned ancillary tasks when the Employer assigned the forklift operation to them on prior projects. At the hearing, a field superintendent for the Employer contended that employees represented by the Engineers failed to perform these necessary ancillary tasks during the substantial time when the forklift was idle on past projects. According to a witness for the
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32 MASONRY-SEPTEMBER/OCTOBER, 1982