Laborers' International Union Of North America, Construction General Laborers, Local 373, Afl-Cio

National Labor Relations Board - Board DecisionsMay 31, 1988

288 N.L.R.B. 1220 (N.L.R.B. 1988)

1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers' International Union of North America, Construction General Laborers, Local 373, AFL-CIO and R. G. Friday Masonry, Inc. and International Union of Operating Engineers, Local 66, AFL-CIO. Case 6-CD-843 May 31, 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed November 27, 1987, by the Employer, alleg- ing that the Respondent, Laborers Local 373, vio- lated Section 8(b)(4)(D) of the National Labor Re- lations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to em- ployees represented by Operating Engineers Local 66. The hearing was held January 27, 1988, before Hearing Officer Barton A. Meyers. 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 The Company, a Pennsylvania corporation, is en- gaged as a masonry contractor in commercial and industrial construction. During the most recent 12- month period, the Company performed services valued in excess of $50,000 for customers located outside the Commonwealth of Pennsylvania. During the same period, the Company purchased goods and materials valued in excess of $50,000 di- rectly from suppliers located outside the Common- wealth of Pennsylvania. The parties stipulate, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that Laborers Local 373 and Oper- ating Engineers Local 66 are labor organizations within the meaning of Section 2(5) of the Act. ' At the commencement of the hearing, Operating Engineers filed a motion to quash the 10(k) proceeding based on the filing of unfair labor practice charges against the Employer alleging, inter alia, that the Em- ployer assigned the work in dispute to laborers rather than to operating engineers m retaliation of a claim for higher wages and backpay by a member of Operating Engineers In relevant part, the Regional Director for Region 6 found no merit in the allegations and dismissed the charges. Operating Engineers' appeal of the Regional Director's dismissal was denied on April 29, 1988. Accordingly, we deny the motion to quash 288 NLRB No. 137 II. THE DISPUTE A. Background and Facts of Dispute In early October 1987, 2 R. G. Friday Masonry, Inc. (Friday) commenced work as a subcontractor for general contractor John R. Hess Company (Hess) in the construction of an office building in Pittsburgh, Pennsylvania, for the Mobay Corpora- tion. Friday performs the masonry work on the job, consisting of brick, block, and terra-cotta coat- ing. Although the building under construction is about five stories high, the masonry work per- formed by Friday is limited mainly to the first and second floors. The disputed work involves the op- eration of a high-lift or "lull" type forklift for the purpose of raising brick, block, and mortar onto scaffolding at the construction site. Robert G. Friday is the president and owner of Friday, which is signatory to collective-bargaining agreements with both Laborers Local 373 and Op- erating Engineers Local 66. Both contracts are ef- fective from June 1, 1987, to May 31, 1990. Friday owns a Pettibone forklift, a large rubber- tired vehicle which, among other things, raises pallet loads of materials onto scaffolds up to a height of about 31 feet by means of a fork arrange- ment mounted on the end of a boom. Although Friday also owns six walk-behind forklifts that are operated by laborers, 3 it is the operation of the Pettibone or high-lift type forklift that is in dispute. On commencing work at the Mobay project, Robert Friday assigned the work of operating the Pettibone forklift to employees represented by La- borers. About November 20, on learning of this as- signment of work, Operating Engineers Local 66, which also has a collective-bargaining agreement with Hess, telegraphed Hess alleging a violation of that agreement's subcontracting clause and request- ing informal arbitration. A copy of the telegram was forwarded from Hess to Robert Friday, who indicated he was contemplating reassigning the forklift work to employees represented by Operat- ing Engineers. 4 Before any reassignment occurred, John McManus, president and field representative for Laborers Local .373, contacted Robert Friday about November 25 and informed him that he had heard Operating Engineers was claiming the fork- lift work. McManus added that if the work was re- 2 All dates are 1987 unless otherwise indicated. 3 The walk-behmd forklift is a small, motorized forklift that lifts mate- rials to heights of only about 10 feet. 4 Operating Engineers made no claim for the work directly to Friday. Although Operating Engineers is attempting to obtain back wages from Hess through their contractual grievance/arbitration provision, Friday has no involvement in that procedure Further, no request has been made by any party that the Board consider, or defer to, any decision rendered in the grievance/arbitration process. LABORERS LOCAL 373 (FRIDAY MASONRY) 1221 - assigned to employees rep resented by Operating Engineers, Laborers would picket the job and shut it down. Thereafter, Friday filed the subject unfair labor practice charges. Progress on the project continued without interruption. B. Work in Dispute The disputed work involves the operation of a Pettibone or a high-lift forklift for the purpose of raising brick, block, and mortar onto scaffolding in the course of the construction of a new office building at the Mobay Corporation site located on Mobay Road in Pittsburgh, Pennsylvania. C. Contentions of the Parties The Employer contends the disputed work should be assigned to employees represented by Laborers, arguing that the Employer's preference and past practices, the industry and area practices, and the factors of economy and efficiency favor such an award. Laborers agrees with the Employer but asserts that, in addition to the factors men- tioned above, its collective-bargaining agreement with the Employer and possession by its members of the required skills favor an award to employees it represents. The Employer seeks an award of the disputed work to employees represented by Labor- ers on its jobsites throughout western Pennsylva- nia. Operating Engineers contends that the employ- ees it represents have a contractually based claim for the work in dispute and possess the necessary skills to perform the work safely, and that these factors, combined with past practice and area prac- tice, require an award of the work to employees it represent. D. Applicability qf 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 stated above, it is undisputed that about No- vember 25, Laborers' representative McManus in- formed Friday that if the Employer reassigned the disputed work to employees represented by Oper- ating Engineers, Laborers would picket the Mobay project and shut it down. We find an object of La- borers' conduct was to force the Employer to maintain the assignment of the disputed work to employees it represents. The parties stipulated at the hearing, and we find, that there is no agreed method for voluntary adjustment of the dispute to which all parties are bound. We find reasonable cause to believe that a viola- tion of Section 8(b)(4),(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative 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 that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinist Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certification and collective-bargaining agreement There is no evidence that either Laborers or Op- erating Engineers has been certified as the exclu- sive collective-bargaining representative of any of the Employer's employees. As stated above, how- ever, Friday is signatory to collective-bargaining agreements with both Unions. Article IV, section 2, of the Laborers most recent contract with the Employer provides that Laborers' jurisdiction covers, among other things, tending masons. Such tending includes supplying and conveying materials to mechanics, "whether by bucket, hod, wheelbar- row, buggy, or other motorized unit used for such purpose, including fork lifts." 5 Friday's agreement with Laborers also includes a broad claim for work in article II, section 1(b), that provides: "There shall be no restriction of the use of any machinery or tools when furnished by the Employer." Friday's collective-bargaining agreement with Operating Engineers contains a specific job classifi- cation and wage rate for forklift (lull-type) opera- tors, items not explicitly delineated in Laborers' contract. In light of Friday's bargaining relationships with both Unions and because both Unions are making a reasonable claim under the collective-bargaining 5 The most recent collective-bargaining agreement removed a height restnction contained in the former contract whereby Laborers' Jurisdic- tion applied to forklifts only when used at a level not exceeding one floor. 1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreements for the disputed work, we find that this factor does not favor an award to employees repre- sented by either Union. 2. Company preference and past practice The record establishes that throughout the years Friday has assigned the disputed work to employ- ees represented by both Unions. However, since the summer of 1987, Friday has demonstrated a clear preference to assign the work exclusively to employees represented by Laborers.6 We find that the Employer's assignment and preference favor an award to employees represent- ed by Laborers. 3. Industry practice The jurisdictional clause contained in the Inter- national agreement between Mason Contractors Association of America, Inc. and Laborers' Inter- national Union of North America is evidence that the national practice in the masonry industry in- volves the assignment of the disputed work to la- borers. Further, Robert Friday testified that labor- ers routinely perform forklift work when his Com- pany operates in the State of West Virginia. Al- though Operating Engineers introduced evidence regarding area practice, it failed to introduce evi- dence to rebut Laborers' position that the national practice for forklift operation in mason tending in- volved the use of laborers. Accordingly, we find that the factor of industry practice favors an award to employees the Labor- ers represent. 4. Area practice The parties submitted evidence which establishes that, on a local level, members of both Unions per- form the work in dispute. As a result of the mixed evidence introduced with respect to area practice, we find that this factor does not favor an award of the disputed work to either UniOn. 5. Relative skills Although Operating Engineers attempted to es- tablish that only it could suppply employees skilled in the performance of the disputed work, the record shows that members of both Operating En- gineers and Laborers are qualified to, and do, oper- ate mason tending forklifts. Dispite the fact that 6 As stated above, allegations by Operating Engineers that Friday's as- signment of the work to employees represented by Laborers was in retal- iation for the pursuit of a wage claim by an operating engineer used fre- quently as a forklift operator by Friday at times preceding the summer of 1987 have been dismissed by the Regional Director for Region 6. Fur- ther, an appeal of that dismissal has been denied. Operating Engineers has a 4-year apprentice pro- gram during which its members are taught to oper- ate such machines as forklifts, Robert Friday testi- fied that no special skills are necessary to perform the disputed work, nor is special training or educa- tion required. Further, Friday testified without contradiction that the Company has never been in- volved in a safety dispute or been cited by a regu- latory agency in relation to the operation of high- lift forklifts by laborers. Accordingly, we find that this factor does not favor an award to employees represented by either Union. 6. Economy and efficiency of operations Friday regularly employs about 35 bricklayers and 20 laborers, approximately 5 of whom operate the disputed forklift. Although operating engineers are not included in the Employer's regular work force, a maximum of two operating engineers may be used on any given day. Friday's typical work crew on the Mobay project consists of eight brick- layers, five laborers, and no operating engineers. The work performed by laborers on the Mobay project includes preparing and mixing mortar, de- livering mortar to work stations along with block and brick, building and raising scaffolding, moving planks, and cleaning up. Laborers also operate the Employer's mortar buggies and walk-behind fork- lifts, as well as the Pettibone forklift in dispute. Al- though Friday has used operating engineers to op- erate its Pettibone forklift in the past, it typically employs operating engineers for the purpose of op- erating a 15-ton crane referred to as a "cherry- picker." Robert Friday testified that one reason he as- signed the disputed forklift work to laborers was because, on a relatively small job such as the Mobay project, a laborer performs many useful and necessary tasks throughout an 8-hour day in addi- tion to operating the Pettibone forklift. Such addi- tional tasks are set forth above. An operating engi- neer, on the other hand, might be unproductive for all but the approximately 2 hours per day that the forklift is in operation as the additional tasks are outside Operating Engineers' jurisdiction. Further, Robert Friday testified that the collective-bargain- ing agreement with Operating Engineers contains a provision guaranteeing a 40-hour workweek, a clause not included in Laborers' contract. Al- though Operating Engineers asserted that the 40- hour guarantee could be waived, no evidence was submitted to establish that such a waiver has been granted to any contractor signatory to an Operat- ing Engineers' agreement. i LABORERS LOCAL 373 (FRIDAY MASONRY) 1223 Accordingly, we find that the factor of economy and efficiency favors awarding the work to em- ployees represented by Laborers. Conclusions After considering all the relevant factors, we conclude that employees represented by Laborers' International Union of North America, Construc- tion General Laborers, Local 373, AFL-CIO are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's assign- ment and preference, industry practice, and econo- my and efficiency of operations. In making this de- termination, we are awarding the work to employ- ees represented by Laborers, not to that Union or its members. The Employer contends that the Board should issue a board award to employees Laborers repre- sents on Friday's jobsites throughout western Pennsylvania. We conclude that a broad order is not warranted. Operating Engineers did not engage in threats of picketing or picketing; rather, it was the Laborers that threatened to picket and shut down the Mobay project 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 this proceeding.7 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of R. G. Friday Masonry, Inc. repre- sented by Laborers' International Union of North America, Construction General Laborers, Local 373, AFL-CIO are entitled to perform the Petti- bone or high-lift forklift work at the Mobay Cor- poration project on Mobay Road in Pittsburgh, Pennsylvania. 7 Laborers Local 1086 (Der:linger, Inc.), 282 NLRB 633 (1987).