International Union of Operating Engineers, Local No. 139 (McWad, Inc.)

National Labor Relations Board - Board Decisions

Jul 27, 1982

262 N.L.R.B. 1300 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
No. 139 and McWad, Inc. and Market & John-
son, Incorporated and Laborers International
Union of North America Local 1359
Laborers International Union of North America
Local 1359 and McWad, Inc. and Market &
Johnson, Incorporated and International Union
of Operating Engineers, Local No. 139. Cases.
30-CD-95 and 30-CD-97
July 27, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by McWad, Inc., herein called
the Employer, alleging that International Union of
Operating Engineers, Local No. 139, herein called
the Operating Engineers, has violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requir-
ing the Employer to assign certain work to its
members rather than to employees represented by
Laborers International Union of North America
Local 1359, herein called the Laborers. The Em-
ployer also filed a charge alleging that the Labor-
ers had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an
object of forcing or requiring the Employer to
assign certain work to its members rather than to
employees represented by the Operating Engi-
neers. 1'
Pursuant to notice, a hearing was held before
Hearing Officer Sharon A. Gallagher on July 30
and on August 26, 1981. All parties appeared and
were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, the Em-
ployer and the Operating Engineers filed briefs.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following findings:
The Employer also filed a charge in Case 30-CD-98 alleging that the
Operating Engineers had violated Sec. 8(bX4)(D) at another site. At the
hearing the Employer withdrew that charge.
262 NLRB No. 118
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Wisconsin corporation with its principal
place of business in Wausau, Wisconsin, is engaged
in the business of masonry contracting. During the
past calendar year, a representative period, the Em-
ployer purchased and received goods and services
from points located directly outside the State of
Wisconsin valued in excess of $50,000. The parties
also stipulated, and we find, that the Employer is
an employer within the meaning of Section 2(2) of
the Act, and that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The parties stipulated, and we find, that Market
& Johnson, Incorporated, a Wisconsin corporation
with its principal place of business in Eau Claire,
Wisconsin, is engaged in the business of general
contracting. During the past fiscal year, a repre-
sentative period, Market & Johnson purchased and
received goods and services from points located di-
rectly outside the State of Wisconsin valued in
excess of $50,000. The parties also stipulated, and
we find, that Market & Johnson is an employer
within the meaning of Section 2(2) of the Act, and
that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
We further find that it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Op-
erating Engineers and the Laborers are labor orga-
nizations within the meaning of Section 2(5) of the
Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a member of the Mason Con-
tractors Association of America, Inc., and is bound
to the master collective-bargaining agreement be-
tween that organization and Laborers International
Union of North America. In February 1981,2 the
Employer entered into a subcontracting agreement
with Market & Johnson, the general contractor for
the construction of the Employer's Insurance of
Wausau Training Center. Market & Johnson is a
member of the Associated General Contractors of
Wisconsin, which is a party to a master agreement,
known as the Area II Agreement, with the Operat-
ing Engineers. In its subcontracting agreement with
Market & Johnson, the Employer agreed to per-
form masonry work and cavity wall insulation at
2 Unless otherwise specified, all dates herein refer to 1981.
1300
OPERATING ENGINEERS, LOCAL NO. 139
the construction site of the Employer's Insurance
of Wausau Training Center.
In March the Employer began to perform the
masonry work, including the disputed work, with
its employees represented by the Laborers. On
April 9, the Operating Engineers filed a grievance
against Market & Johnson, claiming that the latter
had violated a contractual provision forbidding the
subcontracting of bargaining unit work to an em-
ployer who is not a signatory to an agreement with
the Operating Engineers.3 Subsequently, Market &
Johnson indicated that it would refuse to arbitrate
the grievance since it viewed the matter as a juris-
dictional dispute.
On June 11, the parties conducted a meeting to
attempt to resolve the dispute. The first part of the
meeting was attended by Marvin Market, president
of Market & Johnson; Lynn Le Gault, counsel for
the Associated General Contractors; Don Shaw,
president of the Operating Engineers; and Louis
Yuker, the Operating Engineers business repre-
sentative. According to Market's testimony, Shaw
stated that the disputed work should be performed
by employees represented by the Operating Engi-
neers, and that if such an assignment were not
made then the Operating Engineers would picket
the jobsite on the following Monday. Shaw testi-
fied that he told Market that the Operating Engi-
neers alternatives were either to file an unfair labor
practice charge with the National Labor Relations
Board, or to picket the jobsite in order to advertise
Market & Johnson's refusal to arbitrate. Subse-
quently, the parties were joined by Al Milak, an
International representative of the Laborers;
Dennis Henrichs, the Laborers business manager;
and McWad's president, Victor Wadzinski. Ac-
cording to Market's testimony, after some discus-
sion Market accused Shaw of having previously
threatened to picket the jobsite if the disputed
work were not assigned to employees represented
by the Operating Engineers. Shaw did not respond,
and the meeting ended without a resolution of the
matter.
A conference call was arranged on the following
day, June 12, between Market, Le Gault, Wad-
zinski, and others. During this conversation, Wad-
zinski agreed to have the disputed work performed
by employees of Market & Johnson represented by
the Operating Engineers. Market testified that pur-
suant to the agreement McWad would have "total
control" over the employees including the authori-
ty to direct their activities on a daily basis and to
fire them if necessary. Market indicated that, al-
though the employees were to remain on Market &
Johnson's payroll, McWad was to reimburse
" The text of this provision is contained in fn. 10, infra.
Market & Johnson for the cost of the employees.
The Laborers was informed of this arrangement,
and the employees represented by the Operating
Engineers began performing the disputed work. On
June 15, the Laborers forwarded to Wadzinski a
letter stating that the Laborers would engage in
picketing or other appropriate action if the disput-
ed work were not assigned to its members. The
Employer filed a charge on June 18 alleging that
the Operating Engineers had violated Section
8(b)(4)(D) of the Act. On July 30, the Employer
filed a similar charge with respect to the Laborers.
B. The Work in Dispute
As set forth in the notices of hearing, the work
in dispute consists of the operating of forklifts and
skid loaders at the construction site of the Employ-
er's Insurance of Wausau Training Center in
Wausau, Wisconsin. The parties further agree that
the disputed work is limited to the operation of
forklifts and skid loaders used in connection with
the Employer's masonry work at that location.
C. Contentions of the Parties
The Employer contends that the disputed work
should be awarded to employees represented by
the Laborers based on employer past practice and
preference, economy and efficiency of operation,
the collective-bargaining agreements, area practice,
and skills.
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 conten-
tion of the Operating Engineers that the disputed
work should be awarded to employees whom it
represents based on the collective-bargaining agree-
ments, 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
1301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subcontractor's, and not the general contractor's,
preference and past practice.4
Furthermore, we reject the Operating Engineers
contention that Market & Johnson controls the as-
signment of the disputed work. We note that the
subcontracting agreement between Market & John-
son 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 surround-
ing 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 testi-
fied that he could "ask" the Employer to take cer-
tain 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 lim-
ited evidence does not indicate that Market &
Johnson unilaterally imposed the decision on the
Employer. 5
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 ac-
tivities 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 pay-
roll, the Employer was obligated to reimburse
Market & Johnson for the cost of the employees.
In view of the foregoing, we find that the evi-
dence is sufficient to establish that Market & John-
4 See Local 114, International Association of Bridge, Structural, Orna-
mental and Reinforced Ironworkers affiliated with the Ironworkers North-
west District Council, AFL-CIO (Seattle Chapter of Associated General
Contractors of America. Inc.), 238 NLRB 906 (1978); Local 282 Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Active Fire Sprinkler Corp.), 233 NLRB 1230 (1977); Glaziers and
Glassworkers Local Union Na 767 (Sacramento Metal 4 Glass Ca), 228
NLRB 200 (1977).
Member Hunter agrees that it is the Employer's preference and put
practice, rather than that of Market & Johnson, which should be consid-
ered in determining the dispute. In doing so, however, he places no reli-
ance on the cases cited in this footnote.
' In this connection Al Milak testified that it was his understanding
that Market & Johnson made the decision to reassign the work. Howev-
er, we do not view his testimony as decisive since he was not a partici-
pant in the conference call of June 12, during which the decision to reas-
sign the work was made.
son exercised control over the work assignment,
and we conclude that on June 12, the Employer re-
tained the control which it had previously exer-
cised. Under the circumstances, we will therefore
consider the Employer's preference and past prac-
tice in determining the merits of the dispute.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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 dis-
pute.
As noted above, Marvin Market testified that, at
the first part of the meeting on June I 1, Don Shaw
stated that the disputed work should be performed
by employees represented by the Operating Engi-
neers, and that if such an assignment were not
made then the Operating Engineers would picket
the jobsite on the following Monday. According to
Market's testimony, during the second phase of the
meeting when Wadzinski and representatives of the
Laborers were present, Market accused Shaw of
having previously threatened to picket the jobsite if
the disputed work were not assigned to operating
engineers. At that time Shaw did not respond to
the accusation. Shaw does not deny stating that the
Operating Engineers might picket, but he asserts
that he indicated only that the Operating Engineers
might picket to advertise Market & Johnson's re-
fusal to arbitrate the grievance. Additionally, it is
undisputed that, by letter dated June 15, the Labor-
ers threatened to picket or take other appropriate
action if the disputed work were not assigned to its
members.
At the hearing the Operating Engineers contend-
ed that both Unions were bound to submit disputes
to the Impartial Jurisdictional Disputes Board.
However, the Operating Engineers conceded that
it has no knowledge of whether the Employer is
bound to that procedure, and no evidence was ad-
duced at the hearing to demonstrate that the Em-
ployer is so bound. The Employer asserts that it is
not a signatory to any agreement providing for the
submission of disputes to the Impartial Jurisdiction-
al Disputes Board.
Therefore, on the basis of the entire recqrd, we
conclude that there is reasonable cause to believe
that both the Operating Engineers and the Labor-
ers have violated Section 8(b)(4)(D) of the Act, 6
' The Operating Engineers contends that there is a conflict between
the testimony of Shaw and Market concerning Shaw's statements at the
June 11 meeting. However, even if we assume that there is a legally sig-
Continued
1302
OPERATING ENGINEERS, LOCAL NO. 139
and we further conclude that there exists no
agreed-upon method for the voluntary adjustment
of the dispute within the meaning of Section 10(k)
of the Act. Accordingly, we find that this dispute
is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors.7 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case. 8
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
Through its membership in the Mason Contrac-
tors Association of America, Inc., the Employer is
bound to the master collective-bargaining agree-
ment between that organization and Laborers fn-
ternational Union of North America. Article III of
that agreement provides, in pertinent part:
Jurisdiction. The work jurisdiction covered by
this Agreement when performed by members
of the ASSOCIATION . . . shall include that
work which has been historically or tradition-
ally or contractually assigned to members of
the LABORERS' INTERNATIONAL
UNION OF NORTH AMERICA in the tend-
ing of Masons including unloading, mixing,
handling, and conveying of all materials used
by Masons by any mode or method .... 9
The Area 11 Agreement, to which Market &
Johnson and the Operating Engineers are bound,
contains a provision forbidding the subcontracting
nificant conflict in the evidence, we note that in a proceeding under Sec.
10(k) the Board is required only to find that there is reasonable cause to
believe that Sec. 8(bX4XD) has been violated. In so finding, we need not
conclusively resolve conflicts in testimony. See International Brotherhood
of Electrical Workers, Local Union 103 of Greater Boston (Maki ElectricaL
Inc.), 227 NLRB 1745, 1746 (1977). We also reject the Operating Engi-
neers' contention that the Laborers' threat of June 15 was nothing more
than a "friendly" attempt to provide the Employer with a basis for filing
a charge. We note that the Laborers' contract with the Employer calls
for the assignment of the disputed work to employees whom it repre-
sents, and that there is nothing to indicate that the picketing threat was
not serious. See Glaziers and Glassworkers Local Union Na. 767 (Sacra-
mento Metal & Glass Co.), supra at 201.
' N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Colum-
bia Broadcasting Sysrem], 364 U.S. 573 (1961).
s International Asvociation of Machinists. Lodge Na 1743. AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962)
9 At the hearing Carl E. Booker, the assistant director of jurisdiction
for Laborers International Union of North America, indicated that the
Laborers would claim the use of forklifts in connection with masonry
work, but not normally in connection with nonmasonry work. Booker
also testified that the Laborers would not normally claim the work of op-
erating power cranes and cherry pickers.
of work to employees who are not signatories to an
agreement with the Operating Engineers, and a
provision indicating that the operation of forklifts
on construction jobsites is exclusively the craft
work of the Operating Engineers. 0 We note, how-
ever, that the Employer is not a party to the Area
II Agreement and has not agreed to be bound by
its terms."' We therefore find that the Area II
Agreement does not favor an award of the work in
dispute to employees represented by the Operating
Engineers. 12
On the other hand, the contract between the La-
borers and the Employer provides that the Labor-
ers has jurisdiction over work involving the "un-
loading, mixing, handling, and conveying of all ma-
terials . . . by any mode or method." In view of
the broad language of that provision, we find that
the collective-bargaining agreements favor an
award of the work in dispute to employees repre-
sented by the Laborers.
2. Employer and area practice
The Employer submitted into evidence a list of
various masonry subcontracting jobs which it had
performed from 1978 to 1981. The list disclosed 12
jobs in 1978, 23 jobs in 1979, 11 jobs in 1980, and
I' The text of these pro visions reads, in pertinent part:
Section 4.1. UNION SUBCONTRACTOR: The Contractor agrees
that, when subletting or contracting out work covered by this
Agreement which is to be performed within the geographical cover.
age 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.
Section 7.8 FORKLIFT ASSIGNMENT: The operation of forklift
trucks on construction jobsites (excluding warehouse and storage
yards as per Teamsters Operating Engineers International Agree-
ment) 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 Agree-
ment.
" The subcontracting agreement between the Employer and Market &
Johnson does not purport to bind the Employer to the Area II Agree-
ment. and it does not contain any reference to work assignment.
i2 The Board was confronted with a similar situation in Local 282, In-
ternational Brotherhood of Teamsters Chauffeurs, Warehousemen and Help-
ers of America (Active Fire Sprinkler Corp.), supra at 1232-33. In that case
the general contractor and one of the unions involved in the dispute were
parties to a contract which arguably covered the disputed work. The
Board gave no weight to the contract since the employer-subcontractor
was not a party to the agreement and had not agreed to be bound by its
terms. See also International Association of Bridge, Structural A Ornamen-
tal Iron Workers, Local .Vao. 21 (Lueder Construction Company). 233
NLRB 1139, 1140 (1977), where the Board found that the "[general con-
tractor'sl contractual obligations cannot be conferred upon [the subcon-
tractor], absent record evidence establishing that [the subcontractor] had
agreed to be bound by those obligations." We also note that the Employ-
er does not have a collective-bargaining agreement with the Operating
Engineers. See Glaziers and Gloassworkers Local Union No. 767 (Sacramen-
to Metal Gla.ss Co.), supra at 201-202. See also Local 114. International
Association of Bridge, Structural, Ornamental and Reinforced Ironworkers
affiliated with the Ironworkers .Vorthwest District Council. AFL-CIO (Seat-
tle Chapter of Associated General Conractors of America. Inc.). supra at
908.
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15 jobs in 1981. Wadzinski testified without contra-
diction that the Employer had used laborers to op-
erate the forklifts on all of these jobs. The record
discloses that 10 years prior to the hearing the Em-
ployer had a collective-bargaining agreement with
the Operating Engineers which provided that em-
ployees represented by the Operating Engineers
were to handle forklifts. There is no evidence that
the Employer has used employees represented by
the Operating Engineers to operate forklifts since
that time. Of course, under its current collective-
bargaining agreement with the Laborers, the Em-
ployer is obligated to assign such work to employ-
ees represented by the Laborers. In view of the
foregoing, we find that the Employer has an estab-
lished practice of assigning the work of operating
forklifts and skid loaders in connection with ma-
sonry work to employees represented by the La-
borers. Accordingly, we find that the factor of em-
ployer practice favors an assignment of the disput-
ed work to employee.3 represented by the Laborers.
Wc further find that the record discloses insuffi-
cient evidence to establish an area practice with
regard to the disputed work. George A. Miller, the
executive vice president of the Mason Contractors
Association of America, Inc., testified that a recent
survey of 50 mason contractors in the State of Wis-
consin found that 93 employees represented by the
Laborers were used by the contractors to operate
their equipment, while only 18 employees repre-
sented by the Operating Engineers were used for
similar tasks. On the other hand, Donald Shaw, tes-
tified that, of the 66 employers in Wisconsin who
are bound to the Area II Agreement, 98 percent
use operating engineers to operate forklifts in con-
nection with construction work. Accordingly, we
find that the factor of area practice does not favor
an award of the disputed work to employees repre-
sented by either Union.
3. Economy and efficiency of operation
George Miller, the executive vice president of
the Mason Contractors Association of America,
Inc., testified that, when a laborer is not engaged in
operating a forklift, he performs other tasks in con-
nection with masonry work, including mixing
mortar and supplying the mason with brick and
block, mortar, and various other materials. Miller
indicated that operating engineers are not trained
to perform such tasks. His testimony in this regard
was corroborated by the testimony of Dennis Hen-
richs, the business manager for the Laborers.
Evidence was also adduced to indicate that oper-
ating engineers are capable of handling other
equipment, such as skip hoists and end loaders,
when not engaged in the operation of the forklift.
The record discloses that forklifts can lift materials
only to a height of approximately 36 feet, and that
a skip hoist must be used to lift materials to a
higher elevation. It is therefore the contention of
the Operating Engineers that, if masonry materials
had to be lifted higher than 36 feet, the task would
have to be performed by an operating engineer.
It thus appears that both laborers and operating
engineers would perform other work at those times
when the disputed work is not being performed.
Accordingly, we find that the factor of economy
and efficiency of operation does not favor an
award of the disputed work to employees repre-
sented by either Union.
4. Relative skills
At the hearing evidence was presented which in-
dicated that the skills necessary to perform the dis-
puted work are possessed by employees represent-
ed by the Operating Engineers as well as by em-
ployees represented by the Laborers. We therefore
find that this factor is inconclusive in determining
the award of the disputed work.
5. Interunion agreements
The Operating Engineers submitted into evi-
dence a 1954 memorandum of understanding which
was agreed upon by the Internationals of both the
Operating Engineers and the Laborers. The memo-
randum notes the existence of disputes arising in
the construction industry between the two organi-
zations, and provides that "[w]ith regard to fork-
lifts and other similar type of equipment, the oper-
ation of same will be by members of the Interna-
tional Union of Operating Engineers .... " It is
contended by the Operating Engineers that this
agreement favors an award of the disputed work to
employees whom it represents.
The Board has observed that such an agreement
does not carry significant weight in the absence of
evidence that all parties have agreed to be bound
by it.' 3 There is no evidence in the instant case
that the Employer has agreed to be bound to the
memorandum. Moreover, we note that in spite of
the agreement the Laborers has continued to claim
the disputed work with the apparent sanction of
the Laborers International. '4 Testimony in support
of the Laborers claim was given at the hearing by
Carl Booker, the assistant director of jurisdiction
'3 See Operative P!asrerrs' and Cement Mavons' Inelrnational Associ-
ation. Local .o. 394. AFL-CIO (Warner Masonry. Inc.). 220 NLRB 1074,
1075-76 (1975); Local 361. International Association of Bridge, Structural
and Ornamen:ol Iron Workers. 4FL-CIO (Conrrete Cas:ing Corp.), 209
NLRB 112, 114-115 (1974).
"4 See Operative Plastererer' and cmcent Mavons' International Associ-
ation. Local iNo. 94, AlL-CIO (Warner
4
fasonry. Inc. . supra at 1076.
1304
OPERATING ENGINEERS, LOCAL NO. 139
for the Laborers International, and by Al Milak,
the International representative of the Chicago
region of the Laborers International. Accordingly,
we attach no weight to the memorandum of under-
standing.
6. Impartial Board determinations
The Operating Engineers submitted into evi-
dence 17 decisions of either the Impartial Jurisdic-
tional Disputes Board or the former National Joint
Board for the Settlement of Jurisdictional Disputes.
The decisions, which range in time from 1964 to
1974, all involve disputes between the Laborers
and the Operating Engineers over the operation of
forklifts in connection with masonry work at var-
ious construction sites throughout the State of Wis-
consin. The work was awarded to the Operating
Engineers in all of the decisions, and it is therefore
the contention of the Operating Engineers that this
factor favors an award of the disputed work to em-
ployees whom it represents.
On previous occasions the Board has refused'to
accord significant weight to such awards when
they fail to explicate the factors upon which they
are based.1 In the instant case the awards consist
of brief letters which rely on either the 1954 agree-
ment between the two Internationals, discussed
supra, or a 1907 decision apparently made by the
American :Federation of Labor. 16 The letters do
not set forth any other factors as a basis for the
award. As indicated above, we do not attach any
weight to the 1954 memorandum of understanding,
and the record sheds little light on the 1907 deci-
sion by the American Federation of Labor. More-
over, we note that the Employer is not obligated to
submit any dispute to the Impartial Jurisdictional
Disputes Board, and the decisions submitted in evi-
dence are not binding on the Employer. 17 We
therefore accord the decision no weight in deter-
mining the award of the disputed work.
I6 See Operative Plasterers' and Cement Masons' International Associ-
ation. Local No. 394, AFL-CIO (Warner Masonry, Inc.). supra at 1075-76;
United Association of Journeymen and Apprentices of the Plumbing and Pi-
pefitting Industry of the United States and Canada, Plumbers Local No 219
(Price Brothers Company, 174 NLRB 547, 550 (1969).
I' The pertinent portions of two typical awards read as follows:
It has been agreed between the two International Unions involved
that the operation of forklift shall be assigned to Operating Engi-
neers.
Contractor is directed to proceed with work on this basis.
The Joint Board voted to make the following job decision:
The work in dispute is governed by the decision of record of No-
vember 11-23, 1907. and shall be assigned to Operating Engineers.
o See Operative Plasterers and Cement Masons International Association,
Local Union No. 21 (Universal Terrazzo & Tile Co.), 218 NLRB 512, 514
(1975).
7. Employer preference
The Employer originally assigned the disputed
work to employees represented by the Laborers,
and it has expressed its clear preference that the
disputed work be awarded to those employees. Ac-
cordingly, we find that this factor favors an award
to employees represented by the Laborers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by the
Laborers are entitled to perform the work in dis-
pute. We reach this conclusion relying on the fac-
tors of the collective-bargaining agreements, em-
ployer practice, and employer preference. In
making this determination, we are awarding the
work in question to employees who are represented
by the Laborers, but not to the Union or its mem-
bers. The present determination is limited to the
particular controversy which gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following determination of dis-
pute:
1. Employees of McWad, Inc., who are repre-
sented by Laborers International Union of North
America Local 1359 are entitled to perform the
work of operating forklifts and skid loaders used in
connection with McWad, Inc.'s masonry work at
the construction site of the Employer's Insurance
of Wausau Training Center in Wausau, Wisconsin.
2. International Union of Operating Engineers,
Local No. 139, is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
McWad, Inc., to assign the disputed work to em-
ployees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers, Local No. 139, shall notify
the Regional Director for Region 30, in writing,
whether or not it will refrain from forcing or re-
quiring the Employer, by means proscribed by Sec-
tion 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above de-
termination.
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