Wisconsin Laborers District Council

National Labor Relations Board - Board Decisions

Dec 8, 1992

309 N.L.R.B. 756 (N.L.R.B. 1992)

756
309 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All subsequent dates refer to 1992 unless specified otherwise.
2 The contract between Miron and Local 139 contains a clause pro-
viding that Miron will subcontract work ‘‘only to a subcontractor
who has signed, or is otherwise bound by, a written labor agreement
entered into with [Local 139].’’
Wisconsin Laborers District Council and Miron
Construction Co., Inc. and International Union
of Operating Engineers, Local 139, AFL–CIO.
Case 30–CD–145
December 8, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed June 12, 1992,1 by Miron Construction Co., Inc.
(Miron), alleging that the Respondent, Wisconsin La-
borers District Council (Laborers District Council),
violated Section 8(b)(4)(D) of the National Labor Re-
lations Act by engaging in proscribed activity with an
object of forcing Miron to have its subcontractor, Bill
Dentinger, Inc. (the Employer), continue to assign cer-
tain work to employees represented by Laborers Inter-
national Union, Local 1086, AFL–CIO (Local 1086)
rather than to employees represented by International
Union of Operating Engineers, Local 139, AFL–CIO
(Local 139). The hearing was held August 18 before
Hearing Officer Janice K. Gifford. Miron, Laborers
District Council, and Local 1086 filed posthearing
briefs.
The National Relations Board has delegated its au-
thority 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
Bill Dentinger, Inc., a Wisconsin corporation, is a
construction firm engaged in masonry subcontracting
with its principal office in Town of Pewaukee, Wis-
consin, where it annually purchases and receives
goods, materials, and services valued in excess of
$50,000 directly from suppliers located outside the
State of Wisconsin.
Miron Construction Co., Inc., a Wisconsin corpora-
tion, is a construction firm with its principal office in
Menasha, Wisconsin, where it annually purchases and
receives goods, materials, and services valued in ex-
cess of $50,000 directly from suppliers located outside
the State of Wisconsin.
The parties stipulate, and we find, that Bill
Dentinger, Inc. and Miron Construction Co., Inc. are
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Laborers District
Council, Local 1086, and Local 139 are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In December 1991, general contractor Miron was
awarded the contract on the American Club construc-
tion project in Kohler, Wisconsin. In March 1992,
Miron engaged the Employer as a masonry subcontrac-
tor on the project. The Employer assigned the oper-
ation of two mason-tending forklifts to employees rep-
resented by Local 1086. Miron has collective-bargain-
ing agreements with both Local 1086 and Local 139.
The Employer also has collective-bargaining agree-
ments with both Local 1086 and Local 139.
The Employer used an employee represented by
Local 139 to operate a crane at the worksite, but as-
signed the forklift work to employees represented by
Local 1086. On March 19, Local 139 filed a grievance
against Miron alleging that Miron ‘‘subcontracted bar-
gaining unit work covered by the . . . Agreement to
a subcontractor not signatory to that agreement,’’ and
seeking payment for the work assigned to employees
represented by Local 1086.2 Laborers District Council
sent Miron a letter, dated May 29, advising Miron and
the Employer that it ‘‘will strike and picket this project
if the work is re-assigned to . . . Local 139.’’
B. Work in Dispute
This disputed work involves the operation of mason-
tending forklifts at the American Club jobsite in
Kohler, Wisconsin.
C. Contentions of the Parties
Miron, Laborers District Council, and Local 1086
contend that there is reasonable cause to believe La-
borers District Council violated Section 8(b)(4)(D) of
the Act; no voluntary means exists for adjustment of
the jurisdictional dispute; and the work in dispute
should be awarded to employees represented by Local
1086 based on the factors of the Employer’s preference
and past practice, area practice, relative skills, and
economy and efficiency of operations.
Although afforded notice and opportunity to appear
at the hearing, Local 139 did not attend the hearing
and did not file a posthearing brief. Consequently,
Local 139 has made no contentions before the Board
with respect to the work in dispute.
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
757WISCONSIN LABORERS DISTRICT COUNCIL
3 Member Oviatt did not participate in Slattery. He does agree,
however, with his concurring colleague that the instant case is distin-
guishable from Slattery in that here Local 139 failed to establish that
the grievance it pursued was arguably meritorious. Accordingly,
without deciding whether Slattery was correctly decided, Member
Oviatt finds, in the circumstances of this case, that there is reason-
able cause to believe that Local 139’s grievance constitutes a claim
for the disputed mason-tending forklift work.
have not agreed on a method for voluntary adjustment
of the dispute. It is uncontroverted that Laborers Dis-
trict Council threatened to strike and picket both Miron
and the Employer if the disputed work was reassigned
to employees represented by Local 139. It is also un-
disputed that Local 139 filed a grievance seeking pay-
ment for the work assigned to employees represented
by Local 1086. This grievance constitutes a competing
claim for the disputed work. See Laborers Local 731
(Slattery Associates), 298 NLRB 787 (1990).3 The
record reveals no agreed method for voluntary adjust-
ment of the dispute binding all parties; and Miron, the
Employer, Laborers District Council, and Local 1086
stipulated that no such agreed method exists.
Based on the above, we find reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed method for vol-
untary 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 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 the dispute.
1. Collective-bargaining agreements
Miron, Laborers District Council, and Local 1086
acknowledge in their briefs that Local 1086’s and
Local 139’s collective-bargaining agreements both
claim the work in dispute and are not dispositive of the
issue. Accordingly, we find that this factor favors an
award of the work in dispute to neither group of em-
ployees.
2. Company preference and past practice
The Employer prefers that the work in dispute be
performed by employees represented by Local 1086.
The Employer, with only one exception, has assigned
forklift work to employees represented by a Laborers
union since the Employer began operations in 1975.
We find that this factor favors an award to employees
represented by Local 1086.
3. Area practice
Witnesses for the Employer and Local 1086 testified
without contradiction that the overwhelming practice
of employers in the Milwaukee area and in the State
of Wisconsin has been to assign the work in dispute
to employees represented by a Laborers union. We
find that the factor of area practice favors an award of
the work in dispute to employees represented by Local
1086.
4. Relative skills
The Employer and Local 1086 offered testimony
that laborers are more skilled at operating the forklifts
than operating engineers. However, the witnesses also
acknowledged that the forklift is a simple machine to
operate without significant training. Accordingly, we
find that this factor favors an award of the work in dis-
pute to neither group of employees.
5. Economy and efficiency of operations
The record reveals that forklift operators actively
work only 2-1/2 to 3 hours per day. An operating engi-
neer assigned to the forklift would have no other work
at the jobsite while the forklift was idle, and would be
precluded from performing other tasks. Laborers, how-
ever, are utilized for other work at the jobsite and can
attend to those duties when they are not needed on the
forklift. The Employer, therefore, will make greater
use of laborers and have more work done on a given
day by a laborer hired to operate the forklift than by
an operating engineer. We find that this factor favors
an award of the work in dispute to employees rep-
resented by Local 1086.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Local 1086 are
entitled to perform the work in the dispute. We reach
this conclusion relying on the factors of employer pref-
erence and past practice, area practice, and economy
and efficiency of operations. In making this determina-
tion, we are awarding the work to employees rep-
resented by Local 1086, not to that Union or its mem-
bers.
Scope of Award
Miron, Laborers District Council, and Local 1086
request that the Board issue a broad work award on
behalf of Laborers unions proscribing coercive claims
by Operating Engineers unions in a geographical area
equal to the territorial jurisdiction of the two compet-
ing labor organizations. They contend that such a
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
broad award is necessary to avoid similar jurisdictional
disputes.
The Board customarily declines to grant an areawide
award in cases such as this in which the charged party
represents the employees to whom the work is awarded
and to whom the employer contemplates continuing to
assign the work. See Laborers (Paul H. Schwendener,
Inc.), 304 NLRB 623 (1991). Accordingly, in the cir-
cumstances of this case we find no warrant for grant-
ing a broad award. Therefore, the present determina-
tion is limited to the particular controversy that gave
rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Bill Dentinger, Inc., represented by
Laborers International Union, Local 1086, AFL–CIO,
are entitled to operate the mason-tending forklifts at
the American Club project in Kohler, Wisconsin.
CHAIRMAN STEPHENS, concurring.
In my dissenting opinion in Laborers Local 731
(Slattery Associates), 298 NLRB 787 (1990), I stated
that I would not find the pursuit of an arguably meri-
torious grievance for the breach of a union signatory
subcontracting clause constituted a claim for work as-
signed by a subcontractor who was the beneficiary of
the arguable breach. So long as a union did nothing
more than announce its intent to pursue such a griev-
ance and actually pursued it through the proper chan-
nels, I would quash the 10(k) notice on the ground that
there was no jurisdictional dispute because of the ab-
sence of competing claims.
It is essential under my Slattery position, however,
that the grieving union establish that it had an arguably
meritorious claim that the subcontracting of the work
in question violated the signatory subcontracting clause
in an agreement between that union and the employer
who subcontracted the work. In the present case, Local
139’s grievance alleges that Miron subcontracted work
to a subcontractor not signatory to an agreement with
Local 139. Both testimony and exhibits presented at
the hearing, however, indicate that the subcontractor,
Bill Dentinger, Inc., was signatory to a collective-bar-
gaining agreement with Local 139. This evidence sug-
gests that Local 139’s grievance against Miron is with-
out basis. Local 139 made no appearance at the 10(k)
hearing and filed no brief with the Board. Local 139
has therefore failed to establish that it was pursuing an
arguably meritorious grievance. Accordingly, I agree
with my colleagues that we are presented with a juris-
dictional dispute. I further agree, for the reasons stated
in the opinion for the majority, that the work should
be awarded to employees represented by Local 1086
and that the award should be limited to the controversy
that gave rise to this proceeding.