Masonry Magazine August 1985 Page. 19
MCAA
Information...
BEFORE THE ARBITRATOR
IN TRIPARTITE ARBITRATION
Arbitrator Awards Forklift Operation to Mason Tenders Over Claims of Operating Engineers
Case No. 81 C 864
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 139, AFL-CIO
and
ALLIED CONSTRUCTION EMPLOYERS ASSOCIATION
and
LABORERS LOCAL UNIONS 113 and 392
Appearances:
Baum and Sigman, Ltd., Attorneys at Law, by Mr. Louis E. Sigman and Mr. Donald Shaw, President, Local 139, IUOE, appearing on behalf of Local 139, IUOE
Michael, Best & Friedrich, Attorneys at Law, by Mr. Thomas W. Scrivner and Mr. Jacob L. Bernheim, appearing on behalf of ACEA
Mr. Walter F. Kelly, Attorney at Law, appearing on behalf of Laborers Local Unions 113 and 392.
ARBITRATION AWARD:
On April 18, 1983, the Hon. Terence T. Evans, United States District Judge for the United States District Court, Eastern District of Wisconsin, issued a decision and order in the matter of a suit initiated by the International Union of Operating Engineers, Local 139, AFL-CIO, to compel the defendant, Allied Construction Employers Association, Inc., to arbitrate a dispute over the assignment of mason-tending forklift work. In the foregoing action, Laborers Local Unions 113 and 392 were allowed to intervene and were named as defendants and cross and countercomplainants.
In his order of April 18, 1983, Judge Evans directed the parties as follows:
Because all of the parties to what is a continuing controversy are in court, consent to arbitration, and seem to need supervision, I will order that the Quality Inn dispute be submitted to tripartite arbitration. The arbitrator is vested with the power to determine his or her own jurisdiction.
However, the issue which is appropriately submitted to the arbitrator is the proper assignment of the work at the Quality Inn job. If all parties agree, other job sites following Quality Inn can also be arbitrated. The arbitrator may decide whether his decision should be given precedential effect and whether it should be the basis, under the Operating Engineers new contract, for an award of back pay and fringe benefits for future violations by the employer.
The three parties here should all have an equal voice in the choice of the arbitrator. As a suggestion, each could name three arbitrators and each then strike two from the list. The arbitrator could then be chosen by lot from the remaining persons on the list. With the entry of this decision and order, the action now before me will be closed. Should difficulties arise in the arbitration procedure, any party may, within a reasonable time, petition to reopen the dispute.
Subsequently, the parties selected the undersigned to serve as Arbitrator, pursuant to Judge Evans' order, and on September 6, 1983, the undersigned was advised of his selection. Hearing was held at Brookfield, Wisconsin, on March 6, 7 and 8, 1984, and September 19 and 20, 1984, at which time the parties were present and given full opportunity to present oral and written evidence, and to make relevant argument. The proceedings were transcribed, and briefs and reply briefs were filed in the matter. Final briefs were exchanged by the Arbitrator on January 23, 1985.
The Issue:
What is the proper assignment of mason tending-forklift work at the Quality Inn job in Waukesha, the Garfield Park Senior Citizens Center in Milwaukee, and the North Shore Savings & Loan job in Waukesha?
The Facts:
Bill Dentinger, Inc., hereinafter referred to as Dentinger, is a mason contractor headquartered in Milwaukee, Wisconsin, and first commenced operating its business in June, 1975. Through Dentinger's membership in the Mason Contractors Association of America, hereinafter MCAA, Dentinger was bound to labor agreements with the Laborers International Union and the Bricklayers' International Union. Through Dentinger's membership in an association affiliated with the Allied Construction Employers' Association, hereinafter ACEA, Dentinger was bound to contracts with Laborers Locals 113 and 392, hereinafter Laborers, and to contracts with Operating Engineers Local 139, hereinafter Engineers, and to Bricklayers Local 8, hereinafter Bricklayers. The foregoing contractual relationship with the Engineers is a contract for Area 1, which includes Racine, Racine, Kenosha, Milwaukee, Washington, Ozaukee and Waukesha counties. Dentinger also is contractually bound by a contract with the Engineers in Area II covering the remainder of the State of Wisconsin.
The relevant provisions of the Area I Engineers' 1980-82 contract are found at Article V. Article V reads:
Section 5.1 Equipment Assignment: The contractor hereby agrees to assign any equipment within the jurisdiction as described below to bargaining unit employees. The oper