Masonry Magazine February 1993 Page. 66
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Р.О. Вох 10263
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1-800-346-4105
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Los Angeles Office
4640 Sperry Street
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Tel: (818) 507-3900
FAX: (818) 244-4799
66 MASONRY-JANUARY/FEBRUARY, 1993
ties; and Miron, the Employer. Laborers District Council, and Local 1066 stipulated that no such agreed method exists.
Based on the above, 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 the dispute.
1. Collective-bargaining agreements
Miron, Laborers District Council, and Local 1086 acknowledge in their briefs that Local 1086's and Local 139's collective-bargaining agreements both claim the work in dispute and are not dispositive of the issue. Accordingly, we find that this factor favors an award of the work in dispute to neither group of employees.
2. Company preference and past practice
The Employer prefers that the work in dispute be performed by employees yees represented by Local 1086. The Employer, with only one exception, has assigned forklift work to employees represented by a Laborers union since the Employer began operations in 1975. We find that this factor favors an award to employees represented by Local 1086.
3. Area practice
Witnesses for the Employer and Local 1086 testified without contradiction that the overwhelming practice of employers in the Milwaukee area and in the State of Wisconsin has been to assign the work in dispute to employees represented by a Laborers union. We find that the factor of area practice favors an award of the work in dispute to employees represented by Local 1086.
4. Relative skills
The Employer and Local 1086 offered testimony that laborers are more skilled at operating the forklifts than operating engineers. However, the witnesses also acknowledged that the forklift is a simple machine to operate without significant training. Accordingly, we find that this factor favors an award of the work in dispute to neither group of employees.
5. Economy and efficiency of operations
The record reveals that forklift operators actively work only 2½ to 3 hours per day. An operating engineer assigned to the forklift would have no other work at the jobsite work at the jobsite while the forklift was idle, and would be precluded from performing other tasks. Laborers, however, are utilized for other work at the jobsite and can attend to those duties when they are not needed on the forklift. The Employer, therefore, will make greater use of laborers and have more work done on a given day by a laborer hired to operate the forklift than by an operating engineer. We find that this factor favors an award of the work in dispute to employees represented by Local 1086.
Member Oviatt did not participate in Slottery. He does agree, however, with his concurring colleague that the instant case is distinguishable from Slattery in that here Local 139 failed to establish that the grievance it pursued was arguably meritorious. Accordingly, without deciding whether Slottery was correctly decided, Member Oviatt finds, in the circumstances of this case, that there is reasonable cause to believe that Local 139's grievance constitutes a claim for the disputed mason-lending forklift work.