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Bunce, who was present at that meeting, then stated that he would commence an area standards picket, which began on the morning of April 16 at both the construction and public gates.2 WLMC then replied by fax and letter to Local 825 that it was not required to pay the Local 825 area standards wage.
On April 18, Local 825 sent WLMC an offer for a 3-year contract. WLMC did not respond to this offer. The picketing ceased on April 22.
B. Work in Dispute
The disputed work involves the operation of a forklift fitted with a truss boom, used at the Ulster County Community College jobsite to lift and set in place limestone panels.
C. Contentions of the Parties
The Employer, WLMC, contends that reasonable cause exists to believe that Operating Engineers Local 825 violated Section 8(b)(4)(D) of the Act by threatening to shut down the jobsite if WLMC did not assign the disputed work to Operating Engineers represented by Local 825. WLMC and Local 17 contend that the operation of the forklift with truss boom should be awarded to employees represented by Laborers Local 17 on the basis of the collective-bargaining agreement, employer preference, past practice, industry practice, relative skills and training, and economy and efficiency of operations. Additionally, WLMC seeks a broad order contending that the dispute between the Laborers and the Operating Engineers is longstanding and affects many mason contractors.
The Operating Engineers Local 825 contends that no jurisdictional dispute exists because it only engaged in lawful, area standards picketing. Local 825 argues further that even if a jurisdictional dispute exists, the Board does not have jurisdiction because both the Laborers and the Operating Engineers have voluntarily agreed to settle their disputes in a private forum which was created by the constitution of the building trades.
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 on a method for voluntary adjustment of the dispute.
As discussed above, there is evidence that (1) Bunce stated to Walters that when a truss boom is attached to a forklift, or whenever any power driven equipment is used, the work helongs to operating engineers; (2) Bunce threatened to picket and shut down the jobsite to obtain jurisdiction over the truss boom; (3) Local 825 set up a picket line which had the effect of stopping ping work; (4) Local 825 325 contacted WLMC during the pick picketing to renew an expired contract for forklift work; and (5) Bunce testified that when he set up the pickets he did not know the difference between the wage rates for the Laborers and the Operating Engineers.
Local 825 argues that it did not violate Section 8(b)(4)(D) because it engaged only in lawful area standards picketing. In a 10(k) proceeding, however, the Board is not charged with finding that a violation did in fact occur, but only that reasonable cause exists for finding a violation. Thus, a conflict in testimony need not be resolved in order for the Board to proceed to a determination of the dispute. Laborers Local 334 (C.H. Heist Corp.), 175 NLRB 608, 609 (1969).
Under these circumstances, we find that the threat by a representative of Local 825 to shut down the jobsite provides reasonable cause to believe that Local 825 engaged in conduct prohibited by Section 8(b)(4)(D). Even assuming that one object of Local 825 was to protest WLMC's wage rates, we find reasonable cause to believe that another object was to force WLMC to assign the disputed work to operating engineers represented by Local 825. Electrical Workers IBEW Local 701 (Federal Street Construction). 306 NLRB No. 160, slip op. at 9 (Mar. 25, 1992).
Local 825 further argues that this dispute is not properly before
The full text of the picket signs stated:
NOTICE TO THE PUBLIC EMPLOYEES OF WALTERS-LAMBERT
Operating Power Driven Construction Equipment At This Job Site Are
Receiving Less Than Local 825's Area Standard Wages and Benefits. We
Have No Dispute With Any Other Employer At This Site.
the Board because both the Laborers and the Operating Engineers have voluntarily agreed to settle their disputes in a private forum that was created by the constitution of the building trades. No evidence was provided in support of this contention. Even assuming, for the sake of argument, that Local 17 and Local B25 are bound by this agreement, the Board may defer to a private tribunal only when all the parties involved in the dispute have agreed to be bound. NLRB v. Plasterers Local 78, 404 U.S. 116 (1971) Plasterers Local 502 (Advanced Terrazzo), 272 NLRB 810, 811 (1984).
During the hearing, Local 825 did not claim that WLMC voluntarily agreed to resolve jurisdictional disputes in a private forum. Thus, there is no basis to find that all the parties have agreed on a method for the voluntary adjustment of this dispute.
Based on the foregoing, we find 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 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 the dispute.
# 1. Collective-bargaining agreements
WLMC Vice President Walters testified that WLMC is a member of the Mason Contractors Association of America (MCAA) which has collective-bargaining agreements with the Bricklayers and Allied Craftsmen, and the Laborers International Unions. In addition, WLMC is a signatory to local agreements with Laborers Local 17 and the Hudson Valley District Council of Bricklayers and Allied Craftsmen. Under section V of the collective-bargaining agreement between the MCAA and the Laborers International Union, the Laborers work jurisdiction includes the tending of masons, unloading, mixing, and the handling of all materials "conveyed by any mode or method."
WLMC is also a signatory to an agreement between Local 17 and the Construction Contractors Association of the Hudson Valley. The preamble of that agreement states that the laborers' work jurisdiction includes supplying materials by motorized units, including forklifts and high forklifts.
WLMC had a single project agreement with Operating Engineers Local 825 that expired on June 30, 1990. That agreement has not been renewed.
We find that Local 17's agreements are broad enough to cover the work in dispute and that the factor of collective-bargaining agreements favors an award of the work in dispute to employees who are represented by Laborers Local 17.
# 2. Employer preference and past practice
Vice President Walters testified that WLMC prefers to award the work in dispute to employees represented by Laborers Local 17. Between July 5, 1990 and May 4, 1992, WLMC performed masonry work on nine contracts. On all nine contracts, including the Ulster County jobsite, WLMC assigned the operation of the forklift to employees represented by Laborers Local 17. On March 3, pursuant to their collective-bargaining agreement, WLMC and Local 17 entered into a written agreement to perform the disputed work.
Walters stated that WLMC had used operating engineers to operate forklifts for a period of about 5 years during the mid-1980s. Those operating engineers, however, were not represented by Local 825 and the work was not performed in Local 17's geographic jurisdiction.
Thus, we find that the factor of employer preference and past practice favors an award to employees represented by Laborers Local 17.
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