Masonry Magazine February 1993 Page. 67
Conclusions
After considering all the relevant factors, we conclude that employees represented by Local 1086 are entitled to perform the work in the dispute. We reach this conclusion relying on the factors of employer preference and past practice, area practice, and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Local 1086, not to that Union or its members.
Scope of Award
Miron, Laborers District Council, and Local 1086 request that the Board issue a broad work award on behalf of Laborers unions proscribing coercive claims by Operating Engineers unions in a geographical area equal to the territorial jurisdiction of the two competing labor organizations. They contend that such a broad award is necessary to avoid similar jurisdictional disputes.
The Board customarily declines to grant an areawide award in cases such as this in which the charged party represents the employees to whom the work is awarded and to whom the employer contemplates continuing to assign the work. See Laborers (Paul H. Schwendener, Inc.), 304 NLRB No. 77 (Aug. 27, 1991). Accordingly, in the circumstances of this case we find no warrant for granting a broad award. Therefore, the present determination is limited to the particular controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the following Determination of Dispute.
Employees of Bill Dentinger, Inc., represented by Laborers International Union, Local 1086, AFL-CIO, are entitled to operate the mason-tending forklifts at the American Club project in Kohler, Wisconsin.
Dated. Washington, D.C. December 8, 1992
Dennis M. Devaney,
Member
Clifford R. Oviatt. Jr..
Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN STEPHENS, concurring.
In my dissenting opinion in Laborers Local 731 (Slattery Associates), 298 NLRB 787 (1990), I stated that I would not find the pursuit of an arguably meritorious grievance for the breach of a union signatory subcontracting clause constituted a claim for work assigned by a subcontractor who was the beneficiary of the arguable breach. So long as a union did nothing more than announce its intent to pursue such a grievance and actually pursued it through the proper channels, I would quash the 10(k) notice on the ground that there was no jurisdictional dispute because of the absence of competing claims.
It is essential under my Slattery position, however, that the grieving union establish that it had an arguably meritorious claim that the subcontracting of the work in question violated the signatory subcontracting clause in an agreement between that union and the employer who subcontracted the work. In the present case, Local 139's grievance alleges that Miron subcontracted work to a subcontractor not signatory to an agreement with Local 139. Both testimony and exhibits presented at the hearing, however, indicate that the subcontractor, Bill Dentinger, Inc., was signatory to a collective-bargaining agreement with Local 139. This evidence suggests that Local 139's grievance against Miron is without basis. Local 139 made no appearance at the 10(k) hearing and filed no brief with the Board. Local 139 has therefore failed to establish that it was pursuing an arguably meritorious grievance. Accordingly, I agree with my colleagues that we are presented with a jurisdictional dispute. I further agree, for the reasons stated in the opinion for the majority, that the work should be awarded to employees represented by Local 1086 and that the award should be limited to the controversy that gave rise to this proceeding.
Dated, Washington, D.C. December 8. 1992.
James M. Stephens.
Chairman
NATIONAL LABOR RELATIONS BOARD
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MASONRY JANUARY/FEBRUARY, 1993 67