Masonry Magazine October 1982 Page. 16
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16 MASONRY-SEPTEMBER/OCTOBER, 1962
NLRB / McWAD, INC.
continued from page 15
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 Operating Engineers. In its subcontracting agreement with Market & Johnson, the Employer agreed to perform masonry work and cavity wall insulation at 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 employer who is not a signatory to an agreement with the Operating Engineers. Subsequently, Market & Johnson indicated that it would refuse to arbitrate the grievance since it viewed the matter as a jurisdictional 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 representative. According to Market's testimony, Shaw stated that the disputed work should be performed by employees represented by the Operating Engineers, and that if such an assignment were not made then the Operating Engineers would picket the jobsite on the following Monday. Shaw testified that he told Market that the Operating Engineers' 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.
Subsequently, 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. According to Market's testimony, after some discussion 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, Wadzinski, and others. During this conversation, Wadzinski agreed to have the disputed work performed by employees of Market & Johnson represented by the Operating Engineers. Market testified that pursuant to the agreement McWad would have "total control" over the employees including the authority to direct their activities on a daily basis and to fire them if necessary. Market indicated that, although the employees were to remain on Market & Johnson's payroll, McWad was to reimburse 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 disputed 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 Employer'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.
continued on page 25
3. The text of this provision is contained in fn. 10, Infra