Masonry Magazine April 1987 Page. 32
NLRB DECISION
The Employer reassigned its mason-tending forklift work to employees provided by Fluor who were represented by the Operating Engineers. The manning of forklifts by employees represented by the Operating Engineers continued for approximately 1 month.
Sometime in January 1986 employees represented by the Laborers were reassigned the forklift work. Thereafter, the Operating Engineers complained to Fluor about this change and Fluor instructed the Employer to assign the work to employees represented by the Operating Engineers or the subcontract arrangement would be terminated.
In a 15 January 1986 letter to the Employer concerning possible forklift work assignment changes, Laborers Business Manager Dennis Henrichs threatened to take "such action as necessary to enforce" the Laborers contract with the Employer, including "picketing or removing [Laborers] from the job site."
On 14 March 1986 the Employer was approached by Laborers Business Manager Henrichs and and told that if a laborer was not assigned the forklift work, job action, including picketing, would be taken the following Monday, 17 March 1986. On that Monday, the Laborers picketed and removed their people from the project, resulting in a job shutdown. Work resumed on Friday, 21 March 1986, with the employees represented by the Operating Engineers being reassigned the mason-tending forklift work. The instant unfair labor practice charge alleging that the Laborers' conduct violated Section 8(b)(4)(D) was filed by the Employer on 18 March 1986.
B. Work in Dispute
The work in dispute is the operation of forklifts used in connection with the Employer's masonry work at the Marathon County Health Care Center, Wausau, Wisconsin jobsite.
C. Contentions of the Parties
The Employer contends that the disputed work should be awarded to employees represented by the Laborers based on its collective-bargaining agreement with the Laborers, its past practice and preference, skills, economy and efficiency of operation, and area practice.
The record indicates that pursuant to Fluor's order the project was also shut down for a few days in December 1985 and January 1986 pending resolution of the work assignment dispute.
The text of these provisions reads, in pertinent part:
Article VI Section 6.1 EQUIPMENT ASSIGNMENT: The Contractor hereby agrees to assign any equipment within the jurisdiction as described below to bargaining unit employees. The operation of all hoisting and portable engines on building and construction work where operated by steam, electricity, diesel, gasoline, hydraulic or compressed air, butane, propane or other gases and nuclear atomic power. Pumps, siphons, pulsometers, concrete mixers (145 and over) and concrete pumps, street rollers, power shovels, backhoes, pile driving rigs, cranes, clamshells, draglines, powered derricks, track or rubber sidebooms, cableways, mounted or towed compactors, drills (track or wagon type), hoists, tuggers, forklifts, endloaders, dinky locomotive mucking machines, concrete finishers (self-propelled), asphalt plants and pavers, power jacks (slipform work), boilers, heaters, boring machines (horizontal), concrete breakers, and tampers (self-propelled), manhoists, generators, shouldering machines, trenchers, bulldozers, scrapers, motor patrols, well points, screeds (power propelled), welding machines, tower cranes, rotary drills (except hand drills and/or jackhammers), dredges, barges, tugboats, safety boats, work boats, floating equipment (marine), overhead cranes, conveyors and augers (concrete), chippers (brush and stump), winch trucks, A-frames, loading machines (powered or self-propelled), power booms and sweepers (tractor-mounted or towed), prestress machines, locomotives, tie placer, tie tamper, stone leveler, rail leveling machines, winches (powered), and all equipment specified in Article X.
(Article X, CLASSIFICATION AND WAGE RATES, contains a wage rate for forklifts.)
Article IV, Section 4.1 UNION SUBCONTRACTOR: The Contractor agrees that, when subletting or contracting out work covered by this Agreement which is to be performed within the geographical coverage of this agreement at the site of the construction, alteration, painting or repair of a highway, building, structure or other work, he will sublet or contract out such work only to a subcontractor who has signed, or is otherwise bound by, a written labor agreement entered into with the Union.
The Operating Engineers, by letter dated 25 March 1986 to the Regional Office for Region 30 contends, inter alia, that it made no threats, that it will not be a party to a strike, that it does not wish to represent the Employer's employees, and that it has no dispute with the Laborers.
The Laborers contends that the work should be assigned to employees whom it represents based on the collective-bargaining agreements, employer preference and past practice, area practice, relative skills, economy and efficiency of operation, and prior Board determinations.
D. Applicability of the Statute
Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8[b][4][D] has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dispute.
It is undisputed that, in a 15 January 1986 letter to the Employer, the Laborers threatened that if the disputed work were reassigned to employees represented by the Operating Engineers, the Laborers would take action to enforce its contract with the Employer, including picketing and the removal of laborers from the job. The Laborers took this action on 17-20 March 1986.
Under these circumstances, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. No party contends that there is an agreed method of 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.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirmative 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 involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the determination of this dispute.
I. Collective-bargaining agreements
Fluor and the Operating Engineers are bound to the Area II Agreement, which contains a provision indicating that the operation of forklifts on construction jobsites is exclusively the craft work of the Operating Engineers, and a second provision forbidding the subcontracting of work to employers who are not signatories to an agreement with the Operating Engineers.
Additionally, Fluor is bound to a local collective-bargaining agreement between the Fox River Valley Contractors Association, the Sheboygan Contractors Association, the Wisconsin River Valley Independent Contractors, and the Wisconsin Laborers' District Council and its affiliates, including Laborers Local 1359. The local Laborers' Agreement also covers the disputed work and forbids subcontracting to employers who are not signatories to an agreement with that organization. Thus, Fluor is subject to conflicting agreements which require the same work assignment be made to employees represented by both Unions.
The text of these provisions reads, in pertinent part:
EXHIBIT B JURISDICTIONAL CLAIMS, TENDERS: Tending masons, plasterers, carpenters, and other building and construction crafts. Tending shall consist of preparation of materials and the handling and conveying of materials to be used by mechanics or other crafts, whether such preparation is by hand or any other process. After the material has been prepared, tending shall include the supplying and conveying of said material and other materials to such mechanic, whether by bucket, hod, wheelbarrow, buggy, trucks, skid loaders, or other motorized units used for such purpose, including forklifts.
Article A. Section 10.1: It is agreed that any work sublet and to (be) done at the site of the construction alteration, painting or repair of a building, structure, or other work, and when a portion of said work to be sublet is under jurisdiction of this Agreement, the work shall be subject to a subcontractor signatory to this Agreement.
The Employer is not a party to the Area II Agreement and has not agreed to be bound by its terms.