Masonry Magazine December 1992 Page. 44
MCAA
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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
Case 3-CD-610
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 825, A,B,C,D,R,RH
and
WALTERS AND LAMBERT MASON
CONTRACTORS, INC.
and
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL NO. 17
DECISION AND DETERMINATION OF DISPUTE
The charge in this Section 10(k) proceeding was filed April 16, 1992, by the Employer, alleging that the Respondent, International Union of Operating Engineers Local 825. A.C.D.R.RH, 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 Laborers International Union of North America, Local No. 17. The hearing was held May 19, before Hearing Officer Alfred M. Norek. The Employer filed a posthearing brief.
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, Walters and Lambert Mason Contractors, Inc. (WLMC), is a New York corporation engaged in mason contracting. It annually purchases and receives goods and materials valued in excess of $50.000 from points located outside the State of New York. During that same time, WLMC received gross revenues in excess of $250,000. 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 Operating Engineers Local 825 and Laborers Local 17 are labor organizations within the meaning of Section 2(5) of the Act.
II. The Dispute
# A. Background and Facts of Dispute
WLMC is a masonry subcontractor currently under contract with U. W. Marx, a general contractor in charge of a construction project at Ulster County Community College in New Paltz, New York. The subcontract calls for WLMC to perform the brickwork for the construction project.
WLMC is a member of the Construction Contractors Association of the Hudson Valley, Inc. and the Mason Contractors Association of America (MCAA). The MCAA has collective-bargaining agreements with the Bricklayers and Allied Craftsmen, and the Laborers International Unions. WLMC has agreed to be bound by those agreements. WLMC is also a signatory to local agreements with the Hudson Valley District Counsel of Bricklayers and Allied Craftsmen, and Laborers Local 17.
In 1989, WLMC had a a single project agreement with Operating Engineers Local 825, covering work to be performed outside out of the geographic jurisdiction of Laborers Local 17. By letter dated May 1, 1990, WLMC stated that it did not wish to renew the contract. The contract expired on June 30, 1990. and has not been renewed.
Michael Walters, vice president of WLMC, testified that on April 9, WLMC received a truss boom forklift attachment at the Ulster County site. A member of Operating Engineers Local 825, present when the truss boom attachment was delivered, asked Walters about the purpose of the attachment and whether he planned to use an operating engineer to run the machine. Walters replied that the truss boom would be used to lift and move stones, and that the work belonged to laborers.
On April 13. Henry Bunce, the business representative for Local 825, visited the Ulster County site and told Walters that once the truss boom was attached to the forklift, the work belonged to operating engineers. Bunce also said that the Laborers and Operating Engineers had reached a voluntary agreement that operating engineers would run the forklift if it was operated more than 4 hours per day. Bunce then, according to Walters, stated that Local 825 would picket and shut down the job if WLMC continued to use laborers to operate the forklift with the truss boom attachment.
Walters testified that on April 14, Bunce returned to the Ulster County jobsite and and restated that Local 825 would picket and shut down the site for jurisdiction of the truss boom.
Walters testified that on April 15, WLMC received a fax from Local 825 stating that WLMC was not paying the area standards for employees operating power-driven equipment. On the same day, Bunce allegedly gave Walters four options that would avoid a Local 825 picket line. WLMC could: stop using the truss boom: sign a jobsite agreement with Local 825; rent a Local 825 operator from the project's site excavator or any other entity that had an agreement with Local 825; or stop using the truss boom until the Laborers and the Operating Engineers Internationals met and discussed jurisdiction. According to Walters, Bunce never stated that Local 825 would not picket if WLMC paid the laborers the Local 825 area standards wage.
Bunce testified that he gave Walters two options: either cease using the truss boom attachment, or pay the area standards to whomever operated the machine. Bunce further stated that the picketing was only for area standards.
Also on April 15, Walters met with the general contractor's superintendent. They determined that the setting of the stones delayed the installation of the roof, and therefore they could not postpone the work and wait for Laborers and the Operating Engineers to privately settle their dispute. As a result, Walters decided to proceed with the work using employees represented by Laborers Local 17.