Masonry Magazine February 1992 Page. 48
MCAA
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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
Case 13-CD-440
Case 13-CD-441
CONSTRUCTION AND GENERAL LABORERS,
DISTRICT COUNCIL OF CHICAGO AND VICINITY,
AFFILIATED WITH THE LABORERS
INTERNATIONAL UNION OF NORTH AMERICA,
AFL-CIO
and
PAUL H. SCHWENDENER, INC.
ALBIN MASONRY
and
LOCAL UNION NO. 150, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL-CIO
DECISION AND DETERMINATION OF DISPUTE
The charges in this 10(k) proceeding were filed on April 17 and 22, 1991, by Paul H. Schwendener, Inc. (Schwendener) and Albin Masonry (Albin or Employer), respectively, alleging that the Respondent, Construction and General Laborers, District Council of Chicago and Vicinity (Laborers), violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing each of them to assign certain work to employees it represents rather than to employees represented by Local Union No. 150, International Union of Operating Engineers, AFL-CIO (Engineers).¹ The cases were consolidated and a hearing was held on May 23, 1991, before Hearing Officer Joan Flynn.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following findings.
I. Jurisdiction
Paul H. Schwendener, Inc., an Illinois corporation, is engaged in construction as a general contractor with its principal offices in Westmont, Illinois, where it annually purchases and receives at its Illinois facility in excess of $50,000 in goods and services directly from outside the State of Illinois.
Albin Masonry, an Illinois corporation, is a masonry contractor with a principal place of business in Chicago Heights, Illinois. During the past calendar year, it purchased and received at its Illinois facility over $500,000 in goods and services from companies which received those products directly from points outside the State of Illinois.
The parties stipulate and we find that Schwendener and Albin are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Laborers and Engineers are labor organizations within the meaning of Section 2(5) of the Act.
II. The Dispute
# A. Background and Facts of Dispute
Schwendener, the general contractor of a nursing home construction project located on Remington Drive in Bolingbrook, Illinois, subcontracted the masonry work on that project to Albin Masonry. Schwendener is a signatory to contracts with the Laborers and the Engineers, covering seven or eight counties in the Chicago metropolitan area, through the Mid-America Regional Bargaining Association (MARBA). Albin has a contract with the Laborers only, through the Contractor's Association of Will and Grundy Counties.
On the nursing home job, Albin assigned the work of operating the Highlander II Lull, a forklift truck used exclusively for masonry work, to its employees who are represented by the Laborers. Albin President Keith Albin testified that in late March 1991, after 2 or 3 weeks into the job, he was called by Engineers Business Representative Gary Benefield who demanded that Albin recognize and contract for operation of the forklift truck or the Engineers would picket the jobsite. Albin replied that he recognized the Laborers as the bargaining agent for the forklift. Albin further testified that in a subsequent conversation Benefield said that he could supply Albin with a first year apprentice engineer at about $10 or $12 an hour, which would be under the going rate of a laborer, and also that he "would not be glued to the [forklift truck) seat." Thereafter, on March 26, Benefield sent Albin a telegram which threatened to picket unless Albin complied with the area standards for engineers at the nursing home site.
Likewise, Schwendener Executive Vice President Joseph Chambers testified that Benefield pressed him to have an engineer operating the forklift for Albin in compliance with the subcontractor memorandum agreement between Schwendener and the Engineers, and thereafter, by letter of March 28, Engineers Vice President James Ness requested a meeting with Schwendener prior to submitting the alleged violation to the joint grievance committee under their contract.
The Engineers did not appear at the hearing nor submit a brief.
"Stipulations by "the parties" refers to stipulations entered into by Schwendener, Albin, and the Laborers.
"All dates refer to 1991.
"Albin testified that Benefield had made similar demands of him and Schwendener in January and February while his company was performing work for Schwendener at a food store construction project. The record does not indicate whether 8(b)(4)(D) charges were filed against the Engineers with respect to these incidents.
"Albin testified that current total hourly wages and benefits for Laborers is $20.35, compared to $29.45 for Engineers.
"The Engineers did submit the matter to the joint grievance committee, which thereafter advised Schwendener by letter that it had met on May 8, but did not vote on the submitted grievance because its management committee concluded that the issue was jurisdictional in nature and thus not eligible for resolution under the grievance procedure.