Masonry Magazine October 1982 Page. 35
1. Collective-bargaining agreements
Through its membership in the Mason Contractors Association of America, Inc., the Employer is bound to the master collective-bargaining agreement between that organization and Laborers International Union of North America. Article III of that agreement provides, in pertinent part:
Jurisdiction. The work jurisdiction covered by this Agreement when performed by members of the ASSOCIATION... shall include that work which has been historically or traditionally or contractually assigned to members of the LABORERS INTERNATIONAL UNION OF NORTH AMERICA in the tending of Masons including unloading, mixing, handling, and conveying of all materials used by Masons by any mode or method.
The Area II Agreement, to which Market & Johnson and the Operating Engineers are bound, contains a provision forbidding the subcontracting of work to employees who are not signatories to an agreement with the Operating Engineers, and a provision indicating that the operation of forklifts on construction jobsites is exclusively the craft work of the Operating Engineers. We note, however, that the Employer is not a party to the Area II Agreement and has not agreed to be bound by its terms. We therefore find that the Area II Agreement does not favor an award of the work in dispute to employees represented by the Operating Engineers."
On the other hand, the contract between the Laborers and the Employer provides that the Laborers has jurisdiction over work involving the "unloading, mixing, handling, and conveying of all materials by any mode or method." In view of the broad language of that provision, we find that the collective-bargaining agreements favor an award of the work in dispute to employees represented by the Laborers.
2. Employer and area practice
The Employer submitted into evidence a list of various masonry subcontracting jobs which it had performed from 1978 to 1981. The list disclosed 12 jobs in 1978, 23 jobs in 1979. 11 jobs in 1980, and 15 jobs in 1981. Wadzinski testified without contradiction that the Employer had used laborers to operate the forklifts on all of these jobs. The record discloses that 10 years prior to the hearing the Employer had a collective-bargaining agreement with the Operating Engineers which provided that employees represented by the Operating Engineers were to handle forklifts. There is no evidence that the Employer has used employees represented by the Operating Engineers to operate forklifts since that time. Of course, under its current collective-bargaining agreement with the Laborers, the Employer is obligated to assign such work to employees represented by the Laborers. In view of the foregoing, we find that the Employer has an established practice of assigning the work of operating forklifts and skid loaders in connection with masonry work to employees represented by the Laborers. Accordingly, we find that the factor of employer practice favors an assignment of the disputed work to employees represented by the Laborers.
We further find that the record discloses insufficient evidence to establish an area practice with regard to the disputed work. George A. Miller, the executive vice president of the Mason Contractors Association of America, Inc., testified that a recent survey of 50 mason contractors in the State of Wisconsin found that 93 employees represented by the Laborers were used by the contractors to operate their equipment, while only 18 employees represented by the Operating Engineers were used for similar tasks. On the other hand. Donald Shaw, testified that, of the 66 employers in Wisconsin who are bound to the Area II Agreement, 98 percent use operating engineers to operate forklifts in connection with construction work. Accordingly, we find that the factor of area practice does not favor an award of the disputed work to employees represented by either Union.
3. Economy and efficiency of operation
George Miller, the executive vice president of the Mason Contractors Association of America, Inc., testified that, when a laborer is not engaged in operating a forklift, he performs other tasks in connection with masonry work, including mixing mortar and supplying the mason with brick and block, mortar, and various other materials. Miller indicated that operating engineers are not trained to perform such tasks. His testimony in this regard was
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MASONRY-SEPTEMBER/OCTOBER, 1982 35