Laborers International Union, Local 1086, Afl--Cio

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 930 (N.L.R.B. 1989)

930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laborers International Union, Local 1086, AFL-
CIO and Par Construction Co., Inc . and Inter-
national Union of Operating Engineers, Local
139, AFL-CIO. Case 30-CD-130
September 29, 1989
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS CRACRAFT , HIGGINS, AND
DEVANEY
The charge in this Section 10(k) proceeding was
filed on March 31, 1989, by the Employer, Par
Construction Co., Inc . (Par), alleging that the Re-
spondent , Laborers Local 1086 (Local 1086), vio-
lated Section 8(b)(4)(D) of the National Labor Re-
lations Act by threatening to engage in proscribed
activity with an object of forcing the Employer to
assign certain work to employees it represents
rather than to employees represented by Operating
Engineers Local 139 (Local 139). The hearing was
held June 5 , 1989, before Hearing Officer Gerald
McKinney. Local 1086 and Local 139 filed post-
hearing briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer 's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
I. JURISDICTION
Par Construction Co., Inc ., a Wisconsin corpora-
tion , is a construction firm engaged in masonry
subcontracting with its principal office in Malone,
Wisconsin . It annually purchases and receives
goods and materials valued in excess of $50 ,000 di-
rectly from suppliers located outside the State of
Wisconsin . We find that the Employer is engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act and that Local 1086 and Local
139 are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In October or November 1988 , general contrac-
tor P.G. Miron Construction Company, Inc.
(Miron) obtained a bid to perform work at the Na-
tional Guard Armory jobsite in Fond du Lac, Wis-
consin . Miron subcontracted the masonry work at
the Armory site to Par Construction Co., Inc.,
which assigned the mason -tending forklift duties to
employees represented by Local 1086.
At a prejob conference between Local 139 Busi-
ness Agent David Waite and Miron 's president,
Gregory Kippenhan , Waite expressed his objection
to Par as the masonry subcontractor . Although
Kippenhan agreed to get back to Waite to discuss
the matter , Kippenhan did not do so. The project
began with Par as the masonry subcontractor and
with laborers represented by Local 1086 operating
the mason-tending forklift . Shortly after the
Armory project began , Local 139 filed a grievance
against Miron alleging a violation of the subcon-
tracting clause in the collective-bargaining agree-
ment between those parties because Miron had sub-
contracted the masonry work to Par, a nonsigna-
tory to the agreement.
Waite, Kippenhan , Par's president , James Rosen-
thal, and Local 1086 Business Agent Thomas Klein
attended a March 22 , 1989 meeting , where Waite
reiterated his objection to Par as the masonry sub-
contractor . Waite reminded Kippenhan that
Miron 's contract with Local 139 required that he
assign operating engineers to his forklifts and that
Kippenhan 's failure to abide by the contract would
result in the grievance that was filed earlier and
taken to arbitration . Miron agreed to place one of
its operating engineers on the forklift and to pay an
engineer on the out-of-work rolls back wages and
fringe benefits for having violated the contract.
After this meeting concluded , Local 1086 sent a
letter notifying Par and Miron that "we will take
such action as necessary to enforce our contract
with Par Construction , Inc. We will strike and
picket in order to preserve our work on this
project." A strike by Local 1086 was averted be-
cause Miron agreed to keep the operating engineer
assigned to the forklift on its own payroll, thus
avoiding the displacement of a laborer from the
Par work crew. All mason-tending forklift work at
this jobsite has since been completed.
B. Work in Dispute
The disputed work involves the mason -tending
forklift work that was assigned to employees repre-
sented by the Laborers by Par Construction Co.,
Inc., the masonry subcontractor for P. G. Miron
Construction Company , Inc., on the National
Guard Armory project in Fond du Lac , Wisconsin.
C. Contentions of the Parties
Both Par and Miron contended at the hearing
that the mason-tending forklift work should be
awarded to employees represented by Local 1086,
based on employer preference , economy and effi-
ciency , and collective-bargaining agreements.
Local 1086 also contends that the employees it
represents have a contractually based claim for the
296 NLRB No. 119
LABORERS LOCAL 1086 (PAR CONSTRUCTION) 931
work in dispute and are preferred by Par and
Miron, and that these factors, combined with in-
dustry and area practice, operational efficiency,
and skill and training, require an award of the
work to employees it represents. Local 1086 also
seeks a broad order covering the work in dispute at
all jobsites of the Employer within the common ge-
ographic jurisdictions of Local 1086 and Local 139.
Local 139 contends that no jurisdictional dispute
exists because the work in dispute has ceased, the
picketing and strike activity threatened by Local
1086 never materialized, and Local 139's contrac-
tual grievance against Miron for allegedly violating
the subcontracting clause did not constitute a claim
to the work in dispute. In addition, Local 139 con-
tends that the factors of Miron's past practice,
areawide industry practice, and its collective-bar-
gaining agreement with Miron favor an award of
the work in dispute to employees it represents by
that Union.
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 on a
method for voluntary adjustment of the dispute.
In a letter dated March 22, 1989, Local 1086 no-
tified Par and Miron that if the disputed work was
assigned to an employee represented by Local 139
it would "take such action as necessary to enforce
our contract with Par Construction, Inc." Such
action expressly included picketing and a strike.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred," and that there
exists no agreed method of 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 af-
firmative award of the disputed work after consid-
ering various factors. NLRB v. Electrical Workers
IBEW Local 1212 (Columbia Broadcasting), 364
U.S. 573 (1961). The Board has held that its deter-
mination in a jurisdictional dispute is an act of
' We find that the settlement of Local 139's grievance against Miron
by the actual reassignment of the mason -tending forklift work to an oper-
ating engineer on Miron 's payroll belies Local 139's contention that the
filing of the grievance protesting Miron 's subcontracting of work to non-
signatory Par was not a claim for the work in dispute . We also reject
Local 139's argument that no jurisdictional dispute exists because the
work in dispute has ceased. "['iihe mere fact that disputed work has been
completed does not render a jurisdictional dispute moot where nothing
indicates that similar disputes are unlikely to recur " Operating Engineers
Local 150 (Martin Cement), 284 NLRB 858 fn . 4 (1987)
judgment based on common sense and experience,
reached by balancing the factors involved in a par-
ticular 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
Par has recognized and bargained with Local
1086 since 1983. Par is signatory to a collective-
bargaining agreement with Local 1086 that is effec-
tive from June 26, 1987, to May 31, 1990. Jurisdic-
tional provisions in this contract include mason-
tending forklift operations. Par is not a party to a
collective-bargaining agreement with Local 139.
Miron is a member of the Wisconsin Chapter,
Associated General Contractors of America, Inc.
(AGC). Miron has had a collective-bargaining rela-
tionship with Local 139 since 1978. The current
contract between Miron and Local 139 runs from
June 1, 1987, to May 31, 1990, and contains juris-
dictional provisions for mason-tending forklift
work. Miron is also a party to the aforementioned
Local 1086 collective-bargaining agreement.
Evidence concerning this factor indicates that
the forklift operation is within the work jurisdic-
tion of both Unions. We therefore find that this
factor does not favor an award to employees repre-
sented by either Union.2
2. Company preference and past practice
Since 1983 Par has assigned mason-tending fork-
lift work to the Laborers and has expressed a pref-
erence to assign this work to the Laborers when-
ever possible. Accordingly, we find that Par's pref-
erence and past practice favor awarding the work
in dispute to employees represented by Local 1086.
3. Area practice
Miron indicates that if mason-tending forklift
work were performed by individuals Miron em-
ployed directly, Miron's preference would be, as its
practice in most cases has been, to have the labor-
ers perform mason-tending forklift work. The prac-
tice of Miron and Par is consistent with the assign-
ment of contractors doing masonry construction
throughout Wisconsin. When an engineer has per-
formed the disputed work, he has done so because
he was already on the job and was not at the time
needed to run other equipment . Accordingly, we
find that area practice favors an award to employ-
ees represented by Local 1086.
2 Laborers Local 1086 (Denrtnger. Inc), 282 NLRB 633, 635 (1987)
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. Relative skills
No special skills are required of the employees
who operate the mason-tending forklift and both
laborers and operating engineers are qualified to
perform the work in dispute . Accordingly , we find
this factor does not favor an award to employees
represented by either Union.
5. Economy and efficiency of operations
The Employer's typical work crew includes
seven bricklayers and three laborers . When the
forklift is not in operation , mason-tenders must also
mix mortar , move scaffolding , and perform utility
duties and cleanup , all tasks that are outside the ju-
risdiction of operating engineers represented by
Local 139. The addition of an operating engineer
to the masonry work crew would thus increase the
Employer 's costs , provide no increase in productiv-
ity, and leave the operating engineer with nothing
to do during the approximately 4 hours a day when
the mason-tending forklift was not in operation.
Accordingly , this factor favors awarding the work
in dispute to employees represented by Local 1086.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Laborers
International Union , Local 1086, AFL-CIO are en-
titled to perform the work in dispute . We reach
this conclusion relying on the preference and past
practices of the Employer, area practice , and econ-
omy and efficiency of operations . In making this
determination , we are awarding the work to em-
ployees represented by the Laborers International
Union, Local 1086, AFL-CIO, not to that Union
or its members.
Local 1086 contends that the Board should issue
a broad award covering the work in dispute at all
jobsites of the Employer within the common geo-
graphic jurisdiction of Local 1086 and Local 139.
We conclude that a broad order is not warranted.
Local 139 did not engage in threats of picketing or
picketing; rather, it was Local 1086 who threat-
ened to picket and strike to maintain assignment of
the disputed work to employees it represents. In
these circumstances , there is no basis for extending
the determination beyond the particular controver-
sy that gave rise to the proceeding.3
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Par Construction Co., Inc. repre-
sented by Laborers International Union, Local
1086 , AFL-CIO are entitled to perform the mason-
tending forklift work at the National Guard
Armory project in Fond du Lac, Wisconsin.
' Laborers Local 1086 (Dentinger. Inc.), supra at 636