Masonry Magazine October 1988 Page. 22
building at the Mobay Corporation site located on Mobay Road in Pittsburgh, Pennsylvania.
C. Contentions of the Parties
The Employer contends the disputed work should be assigned to employees represented by Laborers, arguing that the Employer's preference and past practices, the industry and area practices, and the factors of economy and efficiency favor such an award. Laborers agrees with the Employers but asserts that, in addition to the factors mentioned above, its collective-bargaining agreement with the Employer and possession by its members of the required skills favor an award to employees it represents. The Employer seeks an award of the disputed work to employees represented by Laborers on its jobsites throughout western Pennsylvania.
Operating Engineers contends that the employees it represents have a contractually based claim for the work in dispute and possess the necessary skills to perform the work safely, and that these factors, combined with past practice and area practice, require an award of the work to employees it represents.
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.
As stated above, it is undisputed that about November 25, Laborers' representative McManus informed Friday that if the Employer reassigned the disputed work to employees represented by Operating Engineers, Laborers would picket the Mobay project and shut it down. We find an object of Laborers' conduct was to force the Employer to maintain the assignment of the disputed work to employees it represents. The parties stipulated at the hearing, and we find, that there is no agreed method for voluntary adjustment of the dispute to which all parties are bound.
We find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting). 364 U.S. 573 (1961). 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 the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the determination of this dispute.
1. Certification and collective-bargaining agreement
There is no evidence that either Laborers or Operating Engineers has been certified as the exclusive collective-bargaining representative of any of the Employer's employees. However, as stated above, Friday is signatory to collective-bargaining agreements with both Unions. Article IV, section 2, of the Laborers' most recent contract with the Employer provides that Laborers' jurisdiction covers, among other things, tending masons. Such tending includes supplying and conveying materials to mechanics, "whether by bucket, hod, wheelbarrow, buggy, or other motorized unit used for such purpose, including fork lifts." Friday's agreement with Laborers also includes a broad claim for work in article II, section 1(b), that provides: "There shall be no restriction of the use of any machinery or tools when furnished by the Employer."
"The most recent collective-bargaining agreement removed a height restriction contained in the former contract whereby Laborers' jurisdiction applied to forklifts only when used at levels not exceeding one floor. "As stated above, allegations by Operating Engineers that Friday's assignment of the work to employees represented by Laborers was in retaliation for the pursuit of a wage claim by an operating engineer used frequently as a forklift operator by Friday at times preceding the summer of 1987 have been dismissed by the Regional Director for Region 6. Further, an appeal of that dismissal has been denied. 22 MASONRY-SEPTEMBER/OCTOBER, 1988
Friday's collective-bargaining agreement with Operating Engineers contains a specific job classification and wage rate for forklift (lull-type) operators, items not explicitly delineated in Laborers' contract.
In light of Friday's bargaining relationships with both Unions and because both Unions are making a reasonable claim under their collective-bargaining agreements for the disputed work, we find that this factor does not favor an award to employees represented by either Union.
2. Company preference and past practice
The record establishes that throughout the years Friday has assigned the disputed work to employees represented by both Unions. However, since the summer of 1987, Friday has demonstrated a clear preference to assign the work exclusively to employees represented by Laborers."
We find that the Employer's assignment and preference favor an award to employees represented by Laborers.
3. Industry practice
The jurisdictional clause contained in the international agreement between Mason Contractors Association of America, Inc. and Laborers' International Union of North America is evidence that the national practice in the masonry industry involves the assignment of the disputed work to laborers. Further, Robert Friday testified that laborers routinely perform forklift work when his Company operates in the State of West Virginia. While Operating Engineers introduced evidence regarding area practice, it failed to introduce evidence to rebut Laborers' position that the national practice for forklift operation in mason tending involved the use of laborers.
Accordingly, we find that the factor of industry practice favors an award to employees the Laborers represent.
4. Area practice
The parties submitted evidence which establishes that, on a local level, members of both Unions perform the work in dispute.
As a result of the mixed evidence introduced with respect to area practice, we find that this factor does not favor an award of the disputed work to either Union.
5. Relative Skills
Although Operating Engineers attempted to establish that only it could supply employees skilled in the performance of the disputed work, the record shows that members of both Operating Engineers and Laborers are qualified to, and do, operate mason tending forklifts. Despite the fact that Operating Engineers has a 4-year apprentice program during which its members are taught to operate such machines as forklifts, Robert Friday testified that no special skills are necessary to perform the disputed work, nor is special training or education required. Further, Friday testified without contradiction that the Company has never been involved in a safety dispute or been cited by a regulatory agency in relation to the operation of high-lift forklifts by laborers.
Accordingly, we find that this factor does not favor an award to employees represented by either Union.
6. Economy and efficiency of operations
Friday regularly employs about 35 bricklayers and 20 laborers, approximately 5 of whom operate the disputed forklift. Although operating engineers are not included in the Employer's regular work force, a maximum of two operating engineers may be used on any given day. Friday's typical work crew on the Mobay project consists of eight bricklayers, five laborers, and no operating engineers. The work performed by laborers on the Mobay project includes preparing and mixing mortar, delivering mortar to work stations along with block and brick, building and raising scaffolding, moving planks, and cleaning up. Laborers also operate the Employer's mortar buggies and walk-behind forklifts, as well as the Pettibone forklift in dispute. Although Friday has used operating engineers to operate its Pettibone forklift in the past, it typically employs operating engineers for the purpose of operating a 15-ton crane referred to as a "cherry-picker."
Robert Friday testified that one reason he assigned the disputed forklift work to laborers was because, on a relatively small job such as the Mobay project, a laborer performs many useful and necessary tasks throughout an 8-hour day in addition to operating the Pettibone forklift. Such additional tasks are set forth above. An operating engineer, on the other hand, might be un-