Masonry Magazine April 1987 Page. 31
MCAA
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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NLRB AWARDS OPERATION OF
FORKLIFTS TO LABORERS
INSTEAD OF OPERATING ENGINEERS
IN WISCONSIN CASE
281 NLRB No. 140
D-3948
Wausau, WI
Case 30-DC-118
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL 1359
and
KRALL'S MASONRY, INC.
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 139, AFL-CIO
DECISION AND DETERMINATION OF DISPUTE
The charge in this Section 10(k) proceeding was filed 18 March 1986 by the Employer, alleging that the Respondent, Laborers' International Union of North America, Local 1359 (Laborers), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by International Union of Operating Engineers, Local 139, AFL-CIO (Operating Engineers). The hearing was held 27 May 1986 before Hearing Officer Gerald McKinney.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following findings.
I. Jurisdiction
The Employer, a Wisconsin corporation, is engaged in the business of masonry subcontracting from facilities located in Wausau, Wisconsin. During its past fiscal year ending 31 December 1985, a representative period, the Employer purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Wisconsin. The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Laborers is a labor organization within the meaning of Section 2(5) of the Act.
II. The Dispute
# A. Background and Facts of Dispute
The Employer, the subcontractor herein, is bound to the 1984-1987 Fox River Valley, Sheboygan Laborers' Agreement (Laborers' Agreement) entered into by the Fox River Valley Contractors Association, the Sheboygan Contractors Association, the Wisconsin River Valley Independent Contractors, and the Wisconsin Laborers' District Council and its affiliates, including Laborers Local 1359. An addendum to that agreement executed by the Employer on 14 February 1985 guarantees mason-tending forklift work to employees represented by the Laborers. The Employer is a member of the Mason Contractors Association of America, Inc. and is also bound to the master collective-bargaining agreement between that organization and the Laborers' International Union of North America (MCAA Agreement). The MCAA Agreement requires signatory contractors to assign mason-tending work to employees represented by the Laborers and to abide by the local Laborers Agreement.
Fluor Brothers Construction, the general contractor herein, is a member of the Wisconsin Chapter, Associated General Contractors of America, Inc., which is party to a master agreement, known as the Area II Agreement, with the Operating Engineers. Fluor is also bound to the local Laborers' Agreement.
In October 1985 Fluor subcontracted to the Employer the masonry work at the Marathon County Health Care Center, Wausau, Wisconsin. The Employer began performing the work on 22 October and initially assigned to employees represented by the Laborers the disputed work of operating forklifts. In early November the Operating Engineers complained to Fluor regarding the use of laborers on the Employer's forklifts. During a 5 December meeting Operating Engineers Representatives Shaw, Guthman, and Brown informed Fluor Branch Office Manager Jerry Henry, and Krall's President Frank Krall and Vice President Dennis Krall that there was a problem with the Employer's assignment of the forklift operation to employees represented by the Laborers and that the Operating Engineers claimed the work.
During that meeting various solutions to the problems were discussed, one of which was having the Employer sign the Operating Engineers' Agreement with an addendum providing that all jurisdiction disputes be submitted to the general presidents of the International unions having jurisdiction over the local unions involved in the jurisdictional dispute and that the parties would "refuse to recognize or be bound by decisions of any panel of arbitrators or the National Labor Relations Board." The Employer refused to sign the addendum as a precondition to signing the Operating Engineers' Agreement.
On 10 December the Operating Engineers filed a grievance with Fluor, alleging that Fluor violated the subcontracting clause of the Area II Agreement by entering into a subcontracting arrangement with the Employer which did not have a contract with the Operating Engineers. On approximately 13 December Fluor instructed the Employer that Fluor's operating engineer employees were to operate the Employer's forklifts.