Laborers Local 113 (Joseph Lorenz, Inc.)

National Labor Relations Board - Board Decisions

Jun 13, 1991

303 N.L.R.B. 379 (N.L.R.B. 1991)

379
303 NLRB No. 58
LABORERS LOCAL 113 (JOSEPH LORENZ, INC.)
1 All dates are in 1990, unless otherwise indicated.
Laborers’ International Union of North America
Local 113 and Joseph Lorenz, Inc. and Inter-
national Union of Operating Engineers, Local
139, AFL–CIO. Case 30–CD–135
June 13, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on November 21, 1990, by the Employer, alleg-
ing that the Respondent Laborers’ International Union
of North America Local 113 (Laborers Local 113) vio-
lated Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with an
object of forcing the Employer to continue to assign
certain work to employees it represents rather than to
employees represented by International Union of Oper-
ating Engineers, Local 139 (Operating Engineers Local
139). The hearing was held on February 1, 1991, be-
fore Hearing Officer Gerald McKinney. The Employer,
Laborers Local ll3, and Operating Engineers Local l39
filed posthearing briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employer, Joseph Lorenz, Inc., a Wisconsin
corporation, is a general contracting firm engaged in
building construction. Its principal office is located in
Hartland, Wisconsin, where it annually purchases and
receives goods and materials valued in excess of
$50,000 directly from points outside the State of Wis-
consin. 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 113 and Operating En-
gineers 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 June 1990,1 the Employer began work as the gen-
eral contractor in the construction of an addition to a
building which housed the cooling equipment for the
Milwaukee County Medical Center. This job was
known as the Chiller Project. Work on the Chiller
Project required occasional use of one or two forklifts
and skid steer loaders (also known as Bobcats). The
Employer assigned this work to its employees rep-
resented by Laborers.
Sometime in August or September, Thomas Lorenz,
the Employer’s president, met with William Smeaton,
a business agent for Operating Engineers. Smeaton ob-
jected to the Employer’s assignment of the forklift and
Bobcat work to the employees represented by Labor-
ers. Following this meeting, Smeaton sent a letter to
Lorenz requesting reassignment of the disputed work
to employees represented by Operating Engineers.
Lorenz informed William Johnson, a Laborers’ busi-
ness representative, that Operating Engineers wanted
the work in dispute and Lorenz was considering
whether to make the requested reassignment. Johnson
told Lorenz that the Laborers was having problems
with the Operating Engineers about the forklift and
Bobcat work and ‘‘were not going to give this up
without a struggle.’’ Johnson asserted that there would
be some kind of concerted action if the work were re-
assigned. By a letter to Lorenz dated September 18,
Johnson reasserted the Laborers’ jurisdictional claim
and stated that if the forklift and Bobcat work were re-
assigned ‘‘to members of Operating Engineers, this
Union has no other alternative but to take some con-
certed action in this matter.’’
On September 19, Lorenz sent a letter to Smeaton
informing him that the Employer considered the matter
to be a jurisdictional dispute and did not agree to as-
sign the work to employees represented by the Oper-
ating Engineers. Thereafter, Operating Engineers filed
a grievance alleging that the Employer’s failure to as-
sign employees represented by Operating Engineers to
operate forklifts and Bobcats on the Chiller Project
violated the parties’ collective-bargaining agreement.
This grievance remained pending at the time of the
hearing. By December 31, work on the Chiller Project
was substantially complete.
B. Work in Dispute
The disputed work involves the operation of forklifts
and skid steer loaders (Bobcats) for the Employer at
the Milwaukee County Chiller Plant Project located in
Wauwatosa, Wisconsin.
C. Contentions of the Parties
The Employer and Laborers Local 113 contend that:
there is reasonable cause to believe that Laborers Local
113 violated Section 8(b)(4)(D) of the Act; no vol-
untary means exists for adjustment of the jurisdictional
dispute; and the work in dispute should be awarded to
employees represented by Laborers Local 113 based on
the factors of its collective-bargaining agreement with
the Employer, the Employer’s preference and past
practice, area practice, skills, and economy and effi-
ciency.
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 There is no merit in Operating Engineers Local 139’s claim that no juris-
dictional dispute exists because the work in dispute at the Chiller Project was
completed without any actual picketing or strike action. It is well-established
that ‘‘the 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, 860 fn. 4 (1987).
3 No party claims there are Board certifications relevant to the work in dis-
pute.
Operating Engineers Local 139 claims that this dis-
pute is not properly before the Board since the work
in dispute has been completed and no picketing or
strike activity ever occurred, Operating Engineers
Local 139 sought only damages for the Employer’s al-
leged breach of contract, and the procedure used by
the Employer and Laborers Local 113 to get this mat-
ter heard was collusive. Assuming the existence of a
genuine jurisdictional dispute, Operating Engineers
Local 139 asserts that the work in dispute should be
awarded to it based on its collective-bargaining agree-
ment with the Employer, area practice, and its safety
and training programs.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k), it must be sat-
isfied that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated and that the parties
have not agreed on a method for voluntary adjustment
of the dispute. As discussed above, there is evidence
that representatives for Laborers Local 113 and Oper-
ating Engineers Local 139 made competing claims to
the work in dispute on behalf of each Union’s rep-
resented employees. It is also uncontroverted that La-
borers Local 113’s business representative Johnson
twice threatened to engage in some concerted action if
the Employer reassigned the work in dispute to em-
ployees represented by Operating Engineers. There is
no evidence to support Operating Engineers Local
139’s claim that Laborers Local 113 was not serious
in making the threat or had in any way colluded with
the Employer in this matter. We find reasonable cause
to believe that a violation of Section 8(b)(4)(D) has oc-
curred.2 Absent any contention or evidence to the con-
trary, we further find that there exists no agreed-on
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.
D. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743 (J.
A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Collective-bargaining agreements3
The Employer has collective-bargaining agreements
with both Unions. Each agreement contains references
to the operation of forklifts and steer loaders by unit
employees represented by the signatory union. Inas-
much as both contracts provide some basis for claim-
ing the work in dispute, we find that the factor of col-
lective-bargaining agreements does not favor an award
of the work in dispute to either group of employees.
2. Company preference and past practice
The Employer prefers that the work in dispute be
performed by employees represented by Laborers. The
Employer has consistently assigned forklift work to
employees represented by Laborers since 1961, and
skid steer loader work to employees represented by La-
borers since 1979. We find that this factor favors an
award to employees represented by Laborers.
3. Area practice
There is conflicting testimony in the record about
the practice of area employers in assigning the work
in dispute. Johnson testified that employees represented
by Laborers operated forklifts and Bobcats in the Mil-
waukee, Washington, and Ozaukee counties of Wis-
consin 99 percent of the time. He also testified that he
asked several contractors in the area about their assign-
ment practices. Their uniform response was that the
work was assigned to employees represented by Labor-
ers. Smeaton testified, however, that he observed em-
ployees represented by Operating Engineers operate
Bobcats and forklifts 50–75 percent of the time on
construction jobsites throughout the area. We find that
the factor of area practice does not favor an award of
the work in dispute to either group of employees.
4. Relative skills
Although only the Operating Engineers appears to
have a formal training school where its members have
the opportunity to learn skills and safety procedures in-
volved in the operation of machines including forklifts
and Bobcats, the record indicates that employees rep-
resented by either Union have the necessary skills and
training to perform the work in dispute. Therefore, we
find that this factor does not favor either group of em-
ployees.
381LABORERS LOCAL 113 (JOSEPH LORENZ, INC.)
5. Economy and efficiency of operations
According to uncontradicted evidence, it is more ec-
onomical and efficient to use employees represented
by Laborers. Witnesses for the Employer testified that
to hire two extra employees represented by Operating
Engineers to operate a forklift and a Bobcat on the
Chiller Project would amount to an additional $60,000
and would not result in any increase in productivity.
These witnesses further testified that both forklifts and
skid steer loaders were actually in operation only one-
half to 3 hours per day on the Chiller Project. An op-
erating engineer assigned to operate only this specific
machinery would not have work to perform for the re-
mainder of each workday. On the other hand, laborers
assigned to perform the work in dispute can perform
a variety of other tasks within their jurisdiction at
times when forklifts and Bobcats were not in use. Ac-
cordingly, we find that this factor favors awarding the
work in dispute to employees represented by Laborers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Laborers Local
113 are entitled to perform the work in dispute. We
reach this conclusion by relying on the factors of em-
ployer preference and past practice, and economy and
efficiency of operations. In making this determination,
we are awarding the work to employees represented by
Laborers Local 113, not to that Union or its members.
The determination is limited to the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Joseph Lorenz, Inc., represented by
Laborers’ International Union of North America Local
113, are entitled to perform the work of operating
forklifts and skid steer loaders (a/k/a Bobcats) for Jo-
seph Lorenz, Inc. at the Milwaukee County Chiller
Plant Project located in Wauwatosa, Wisconsin.