Masonry Magazine October 1982 Page. 25
NLRB / McWAD, INC.
The Operating Engineers brief initially contends that there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated. Assuming such reasonable cause exists, it is also the contention of the Operating Engineers that the disputed work should be awarded to employees whom it represents based on the collective-bargaining agreements, interunion agreements, previous awards of the Impartial Jurisdictional Disputes Board and its predecessor, area practice, skills, and economy and efficiency of operation.
It is further argued by the Operating Engineers that the preference and past practice of Market & Johnson, rather than that of the Employer, should be given weight, since Market & Johnson controls the assignment of the work in dispute. The Board has considered this argument and has concluded that under the circumstances of this case it is the preference and past practice of the Employer, rather than that of Market & Johnson, which should be considered as a factor in determining the dispute. We note initially that in cases involving similar circumstances the Board has considered the subcontractor's, and not the general contractor's, preference and past practice.
Furthermore, we reject the Operating Engineers' contention that Market & Johnson controls the assignment of the disputed work. We note that the subcontracting agreement between Market & Johnson and the Employer is silent on this issue, and that it was the Employer's decision to assign the work to employees represented by the Laborers in the first instance. Additionally, the record does not disclose in any detail the circumstances surrounding the decision on June 12 to reassign the work to employees represented by the Operating Engineers. Marvin Market testified only that in the course of the conference call on June 12 the Employer's president, Wadzinski, "agreed" to have operating engineers perform the work. Market further testified that he could "ask" the Employer to take certain action, but acknowledged that he did not know if Market & Johnson was in a legal position to "demand" that the Employer do so. Wadzinski indicated that avoiding a work stoppage was a factor considered in the decision. Even though Market & Johnson probably exerted some pressure on the Employer to change the assignment, there is nothing to indicate that the Employer did not retain the right to choose the employees to whom the assignment would be made. Contrary to the Operating Engineers' contention, therefore, the limited evidence does not indicate that Market & Johnson unilaterally imposed the decision on the Employer.
It should also be noted that under the terms of the June 12 agreement the Employer retained the right to fire the employees and to direct their activities on a daily basis. Indeed, Market conceded that the Employer possessed "total control" over the daily activities of the employees. Although the employees remained on Market & Johnson's payroll, the Employer was obligated to reimburse Market & Johnson for the cost of the employees.
In view of the foregoing, we find that the evidence is insufficient to establish that Market & Johnson exercised control over the work assignment, and we conclude that on June 12 the Employer retained the control which it had previously exercised. Under the circumstances, we will therefore consider the Employer's preference and past practice in determining the merits of the dispute.
RG
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4. See Local 114, International Association of Bridge, Structural, Ornamental and Reinforced Ironworkers, affiliated with the Ironworkers Northwest District Council, AFL-CIO (Seattle Chapter of Associated General Contractors of America, Inc.), 238 NLRB 906 (1978); Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, (Active Fire Sprinkler Corp.). 233 NLRB 1230 (1977); Glaziers and Glassworkers Local Union No. 767 (Sacramento Metal & Glass Co.). 228 NLRB 200 (1977). Member Hunter agrees that it is the Employer's preference and past practice, rather than that of Market & Johnson, which should be considered in determining the dispute. In doing so, however, he places no reliance on the cases cited in this footnote.
5. In this connection, Al Milak testified that it was his understanding that Market & Johnson made the decision to reassign the work. However, we do not view his testimony as decisive since he was not a participant in the conference call of June 12, during which the decision to reassign the work was made.