Masonry Magazine June 1985 Page. 22
NLRB DECISION
The Operating Engineers, then the Laborers would take "such action as necessary" to enforce its contract with the Employer, including picketing and the removal of laborers from the job.
B. Work in Dispute
The work in dispute is the operation of the forklift used in connection with the Employer's masonry work at the Memorial Student Center, University of Wisconsin-Stout, Menomonie, Wisconsin jobsite.
C. Contentions of the Parties
The Employer contends that the disputed work should be awarded to employees represented by the Laborers based on its collective-bargaining agreement with the Laborers, its past practice and preference, skills, economy and efficiency of operation, and area practice.
The Operating Engineers contends that it has no jurisdictional dispute with the Laborers concerning the Employer, but rather a dispute with Boldt concerning a contract violation. Operating Engineers vice president Dale Stubbe testified, however, that should the operation of the forklift be assigned to an employee represented by the Operating Engineers their grievance would be withdrawn. Further, it is clear from the record that the Operating Engineers claimed the disputed work. Under these circumstances, we find that there is a jurisdictional dispute between the Operating Engineers and the Laborers over the Employer's assignment of the disputed work.
The Laborers contends that the work should be assigned to employees whom it represents based on the collective-bargaining agreements and area practice.
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 upon a method for the voluntary adjustment of the dispute.
It is undisputed that, in a letter to the Employer on 7 August, the Laborers threatened that if the disputed work were assigned to employees represented by the Operating Engineers, the Laborers would take action to enforce its contract with the Employer, including picketing and the removal of laborers from the job.
Under these circumstances, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. No party contends that there is an 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 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 this dispute.
# 1. Collective-bargaining agreements
Boldt and the Operating Engineers are bound to the Area II Agreement, which contains a provision indicating that the operation of forklifts on construction jobsites is exclusively the craft work of the Operating Engineers, and a provision forbidding the subcontracting of work to employers who are not signatories to an agreement with the Operating Engineers. Additionally, Boldt is bound to a collective-bargaining agreement between the Chippewa Valley Contractors Association of Eau Claire and Area and General Laborers' Union Local No. 317 which also covers the disputed work and forbids subcontracting to employers who are not signatories to an agreement with that organization. The subcontracting agreement between Boldt and the Employer requires only that the Employer shall supply labor and/or materials which will not cause labor disputes in the overall performance of the contractors work.
Thus, since Boldt is subject to conflicting agreements which require that the same work assignment be made to employees represented by both Unions and the subcontracting agreement does not clarify this ambiguity, we find the subcontracting agreement to be inconclusive for purposes of resolving this dispute.
The master collective-bargaining agreement to which the Employer and the Laborers are bound, however, encompasses work involving the "unloading, mixing, handling and conveying of all materials... by any mode or method," as well as a specific contract addendum to Article 26 which states that "the operation of forklifts, highlifts and Bobcats, no matter what height they are used, be assigned to general laborers union members." We rely on the broad language of these provisions to find that the factor of the collective-bargaining agreements ments favors an award of the work in dispute to employees represented by the Laborers.
# 2. Company preference and past practice
The record reflects that for at least the past 10 to 12 years the Employer has utilized only employees represented by the Laborers to perform the disputed work with two exceptions. In view of this established practice of assigning the work of operating forklifts in connection with masonry work to employees represented by the Laborers, we find the factor of employer practice favors an assignment of the disputed work to employees represented by the Laborers.
Neither the Operating Engineers nor Laborers filed a posthearing brief in this matter. Their respective contentions are drawn from statements contained within the record.
"The text of these provisions reads, in pertinent part: Article VII Section 7.8 ELEVATOR AND FORKLIFT ASSIGNMENT: The operation of elevator or forklift trucks on contruction jobsites (excluding warehouse and storage yard as per Teamster Operating Engineers International Agreement) is exclusively the craft work of the Operating Engineers and assignment of said operation shall be made to an Operating Engineer, dispatched and covered by the terms and conditions of this agreement. On jobs or projects where the use of an elevator or forklift truck is not of sufficient quantity to warrant the employment of an operator, the Contractor or Contractor Representative will contact the Union District Business Representative of the Operating Engineers and if mutually agreed, then and only then, may the Contractor use another employee to perform said work. Article IV Section 4.1 UNION SUBCONTRACTOR: The Contractor agrees that, when subletting or contracting out of work covered by this Agreement which is to be performed within the geographical coverage of this Agreement at the site of the construction, alteration, painting, or repair of a highway, building, structure or other work, he will sublet or contract out such work only to a subcontractor who has signed, or is otherwise bound by, a written labor agreement entered into with the Union.
The text of these provisions reads, in pertinent part: 22 MASONRY-MAY/JUNE, 1985
Article XVI Part 1 TENDERS: Tending masons, plasterers, carpenters and other building and construction crafts. Tending shall consist of preparation of materials and the handling and conveying of materials to be used by mechanics of other crafts, whether such preparation is by hand or any other process. After the material has been prepared, tending shall include the supplying and conveying of said material and other materials to such mechanic, whether by bucket, hod, wheelbarrow, buggy, or other motorized unit used for such purpose, including forklifts when used at levels not in excess of nine feet. Unloading, handling and distributing of all materials, fixtures, furnishings and appliances from point of delivery to stockpiles and from stockpiles to approximate point of installation.
Article XIX Section 1-It is agreed that any work sublet and to be done at the site of the construction alteration, painting or repair of a building, structure, or other work and when a portion of said work to be sublet is under the jurisdiction of this Agreement, the work shall be sublet to a Subcontractor signatory to this agreement.
"Wadzinski testified that the Employer had not had a contract with the Operating Engineers for over 10 years and, on the 45 subcontracting jobs performed over the past 4 years by the Employer, the Employer had used laborers except on the Market & Johnson, Inc. job in 1981 and the Oscar J. Boldt parking ramp job in 1981. These two jobs were the subjects of two prior Board decisions involving the Employer. Operating Engineers Local 139, 262 NLRB 1300 (1982) (McWad I): Laborers Local 1359, 264 NLRB 1397 (1982) (McWad II.)