Masonry Magazine February 1993 Page. 65
MCAA
Information...
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
Case 30-CD-145
WISCONSIN LABORERS DISTRICT COUNCIL
and
MIRON CONSTRUCTION CO., 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 June 12, 1992, by Miron Construction Co., Inc. (Miron), alleging that the Respondent, Wisconsin Laborers District Council (Laborers District Council), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing Miron to have its subcontractor, Bill Dentinger, Inc. (the Employer), continue to assign certain work to employees represented by Laborers International Union, Local 1086, AFL-CIO (Local 1086) rather than to employees represented by International Union of Operating Engineers, Local 139, AFL-CIO (Local 139). The hearing was held August 18 before Hearing Officer Janice K. Gifford. Miron, Laborers District Council, and Local 1086 filed posthearing briefs.
The National 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.
Jurisdiction
Bill Dentinger, Inc., a Wisconsin corporation, is a construction firm engaged in masonry subcontracting with its principal office in Town of Pewaukee, Wisconsin, where it annually purchases and receives goods, materials, and services valued in excess of $50,000 directly from suppliers located outside the State of Wisconsin.
Miron Construction Co., Inc., a Wisconsin corporation, is a construction firm with its principal office in Menasha, Wisconsin. where it annually purchases and receives goods, materials, and services valued in excess of $50,000 directly from suppliers located outside the State of Wisconsin.
The parties stipulate, and we find, that Bill Dentinger, Inc. and Miron Construction Co., Inc. are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Laborers District Council, Local 1086, and Local 139 are labor organizations within the meaning of Section 2(5) of the Act.
'All subsequent dates refer to 1992 unless specified otherwise.
"The contract between Miron and Local 139 contains a clause providing that Miron will subcontract work "only to a subcontractor who has signed, or is otherwise bound by, a written labor agreement entered into with [Local 139]."
The Dispute
# Background and Facts of Dispute
In December 1991. general contractor Miron was awarded the contract on the American Club construction project in Kohler, Wisconsin. In March 1992, Miron engaged the Employer as a masonry subcontractor on the project. The Employer assigned the operation of two mason-tending forklifts to employees represented by Local 1086. Miron has collective-bargaining agreements with both Local 1086 and Local 139. The Employer also has collective-bargaining agreements with both Local 1086 and Local 139.
The Employer used an employee represented by Local 139 to operate a crane at the work site, but assigned the forklift work to employees represented by Local 1086. On March 19, Local 139 filed a grievance against Miron alleging that Miron "subcontracted bargaining unit work covered by the... Agreement to a subcontractor not signatory to that agreement," and seeking payment for the work assigned to employees represented by Local 1086. Laborers District Council sent Miron a letter, dated May 29. advising Miron and the Employer that it "will strike and picket this project if the work is re-assigned to... Local 139."
# Work in Dispute
This disputed work involves the operation of mason-tending forklifts at the American Club jobsite in Kohler, Wisconsin.
# Contentions of the Parties
Miron, Laborers District Council, and Local 1086 contend that there is reasonable cause to believe Laborers District Council violated Section 8(b)(4)(D) of the Act; no voluntary means exists for adjustment of the jurisdictional dispute; and the work in dispute should be awarded to employees represented by Local 1086 based on the factors of the Employer's preference and past practice, area practice, relative skills, and economy and efficiency of operations.
Although afforded notice and opportunity to appear at the hearing, Local 139 did not attend the hearing and did not file a posthearing brief. Consequently, Local 139 has made no contentions before the Board with respect to the work in dispute.
# Applicability of the Statute
Before the Board may proceed with a determination of the dispute pursuant to Section 10(k), 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. It is uncontroverted that Laborers District Council threatened to strike and pocket both Miron and the Employer if the disputed work was reassigned to employees represented by Local 139. It is also undisputed that Local 139 filed a grievance seeking payment for the work assigned to employees represented by Local 1086. This grievance constitutes a competing claim for the disputed work. See Laborers Local 731 (Slattery Associates), 208 NLRB 787 (1990). The record reveals no agreed method for voluntary adjustment of the dispute binding all par-