Construction and General Laborers' Local 118, Laborers' International Union of North America, AFL-CIO (D. H. Johnson)

National Labor Relations Board - Board Decisions

Jul 22, 1982

262 N.L.R.B. 1147 (N.L.R.B. 1982)

CONSTRUCTION AND GENERAL LABORERS' LOCAL 118
Construction and General Laborers' Local 118, La-
borers' International Union of North America,
AFL-CIO and D. H. Johnson Company and In-
ternational Union of Operating Engineers, Local
150, AFL-CIO
International Union of Operating Engineers, Local
150, AFLCIO and D. H. Johnson Company
and Construction and General Laborers' Local
118, Laborers' International Union of North
America, AFL-CIO. Cases 13-CD-303 and 13-
CD-304
July 22, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by D. H. Johnson Company,
herein called the Employer. In Case 13-CD-303,
the Employer alleged that Construction and Gener-
al Laborers' Local 118, Laborers' International
Union of North America, AFL-CIO, herein called
the Laborers, had violated Section 8(b)(4)(D) of
the Act by threatening to picket with an object of
forcing the Employer to refrain from assigning cer-
tain work to employees represented by Internation-
al Union of Operating Engineers, Local 150, AFL-
CIO, herein called the Engineers, in a manner in-
consistent with its current assignment to the Labor-
ers. In Case 13-CD-304, the Employer alleged that
the Engineers had violated Section 8(b)(4)(D) of
the Act by picketing with an object of requiring
the Employer to assign certain work to employees
represented by the Engineers rather than to em-
ployees represented by the Laborers.
Pursuant to notice, a hearing was held on the
consolidated cases before Hearing Officer Ramon
Martinez, Jr., on October I and 9, 1981. All parties
appeared and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereaf-
ter, briefs were filed by the Employer, the Engi-
neers, and the Laborers.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
262 NLRB No. 120
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Delaware corporation, is engaged in the
business of brick masonry as a construction subcon-
tractor. Its principal place of business is in DuPage
County, Illinois. During the last calendar or fiscal
year, the Employer had gross revenues in excess of
$500,000 and purchased goods and materials from
outside the State of Illinois which it received at its
worksites within the State of Illinois, having a
value in excess of $50,000. The parties also stipulat-
ed, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the En-
gineers and the Laborers are both labor organiza-
tions within the meaning of Section 2(5) of the
Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a construction subcontractor
for an apartment building project located in Mount
Prospect, Illinois, at which it employs both labor-
ers and bricklayers. In general, the bricklayers are
responsible for laying the masonry material (brick,
block, stone, and wire) on the wall being construct-
ed; the laborers are responsible for mixing the
mortar prior to its transportation to the bricklayers,
and for assisting the bricklayers by shoveling
mortar from the mortar tub to mortarboards for
the bricklayers' use in laying the block or brick.
The laborers also assemble scaffolding, and per-
form cleanup work or any miscellaneous tasks.
Forklifts are used on the Employer's construction
projects to lift bundles of bricks or the mortar tubs
to the bricklayers' work locations, be they on the
ground or on the scaffolding. The forklift also is
used in the actual erection of the scaffolding.
Pursuant to its agreement with the Construction
and General Laborers' District Council of Chicago
and Vicinity and consistent with its desires, the
Employer assigned the operation of the forklift on
the Mount Prospect project to employees repre-
sented by the Laborers by letter dated August 17,
1981.1 The evidence presented at the hearing estab-
lished that the Engineers threatened to picket the
jobsite unless forklift work being performed by em-
ployees represented by the Laborers was reas-
signed to employees represented by the Engineers;
I All dates are in 1981 unless indicated otherwise.
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Engineers thereafter began picketing on August
27, and the picketing lasted for approximately 2
weeks.2 In a letter dated September 2, the Labor-
ers informed the Employer that it would engage in
picketing if the Employer reassigned the forklift
work in any manner inconsistent with the current
assignment to employees represented by the Labor-
ers. On September 2, the Employer filed 8(b)(4)(D)
charges against both the Engineers and the Labor-
ers.
On September 14, the Engineers requested a
hearing before the Joint Conference Board, herein
called JCB, which is described below, regarding
the Employer's assignment of the disputed forklift
operation to employees represented by the Labor-
ers. The Employer refused to participate in the
scheduled hearing, and sent a mailgram to the sec-
retary of the JCB advising that "[the Employer] is
not stipulated to the JCB for settlement of jurisdic-
tional disputes and is not bound to any of its deci-
sions."3 The JCB awarded the work to employees
represented by the Engineers. 4
With respect to whether there is, in fact, an
agreed-upon method to resolve this dispute, the
record indicates that the Employer is signatory to a
1965 Memorandum of Agreement with the Engi-
neers, pursuant to which both parties agreed to
adopt the then-existing collective-bargaining agree-
ment between the Engineers and the Building As-
sociation of Chicago (BAC). The Memorandum of
Agreement also provides for the adoption of any
agreement entered into between the Engineers and
the BAC unless notice of termination or amend-
ment is provided in the manner specified. No such
notice has ever been given.
BAC is an affiliate of the Building Construction
Employers' Association of Chicago (CEA). In an
agreement known as the "Standard Agreement,"
the CEA and the Chicago and Cook County Build-
ing and Construction Trades' Council (BCTC)
formed the JCB. The declared purpose of the JCB
is to act as mediator in disputes arising at jobsites
2 The Engineers makes no attempt to refute this evidence in the record
correlating the picketing to the job assignment. In particular, Lloyd An-
derson, a field superintendent for the Employer, testified that the Engi-
neers' business representative, Bill Rucker, orally demanded that the fork-
lift operation be assigned to a member of the Engineers. When informed
that the work had been assigned to an employer represented by the La-
borers, he allegedly stated, "Well, we'll, we'll see about this." Soon
thereafter, but after a lapse of more than 48 hours, employees represented
by the Engineers commenced picketing on August 27.
3 According to the record, representatives of the Laborers and the En-
gineers appeared at the October 7 hearing conducted by the JCB. Joseph
DeRose, business manager for the Laborers, allegedly admitted at that
hearing that the Laborers was bound to the JCB for resolution of the ju-
risdictional work dispute. In its brief to the Board, however, the Labor-
ers contends that its representatives objected specifically to the jurisdic-
tion over the matter at that hearing, and that the Laborers now has no
intention of complying with the JCB's determination.
I The JCB decision issued before the hearing closed in this case.
in Cook County, Illinois, where the Mount Pros-
pect project is located, concerning trade agree-
ments between unions and associations affiliated
with the CEA and the BCTC.
The Engineers alleges that the Laborers is also
subject to the terms of the Standard Agreement as
a result of its affiliation with the Chicago Building
Trades Council (CBTC). The Engineers is a
member of the CBTC, while the Laborers is an af-
filiate of the Construction and General Laborers'
District Council of Chicago and Vicinity, which
itself is a member of the CBTC. CBTC's bylaws
provide that all jurisdictional work disputes be-
tween affiliates of the CBTC shall be resolved in
accordance with the Standard Agreement. Addi-
tionally, the Engineers alleges in its brief to the
Board that both the Engineers and the Laborers
have representatives sitting on the JCB.5
There is also in effect, however, a collective-bar-
gaining agreement between the Laborers' Interna-
tional Union of North America and the Mason
Contractors Association of America (MCAA), of
which the Employer is an admitted member. That
agreement provides that all work jurisdiction dis-
putes are to be referred to the International Union
and the MCAA for resolution. In addition, this
agreement provides specifically that the provision
for jurisdictional work disputes resolution is exclu-
sive and that it supercedes any other procedure
outlined in any agreement between a member of
the MCAA and any local union.
B. The Work in Dispute
The work in dispute involves the operation of a
forklift which transports and hoists masonry mate-
rials and erects scaffolding in aid of bricklayers em-
ployed by the Employer at the apartment construc-
tion project at 900 East Centennial Drive in Mount
Prospect, Illinois.
C. Contentions of the Parties
The Employer contends that the dispute is prop-
erly before the Board because there does not exist
any method for the voluntary adjustment of the in-
stant jurisdictional dispute to which all necessary
parties are bound. It argues that it is not a member
of the BAC or the CEA, and therefore claims that
it is not bound to the JCB by any employer associ-
ation membership or affiliation. The Employer
claims membership only in the MCAA and the
Mason Contractors Association of DuPage County,
neither of which is a member of the JCB. In addi-
6 The purported Laborers' representative sitting on the JCB in actual-
ity is the secretary-treasurer of the Construction and General Laborers'
District Council of Chicago and Vicinity.
1148
CONSTRUCTION AND GENERAL LABORERS' LOCAL 118
tion, the Employer claims that it is not bound by
the Memorandum of Agreement signed with the
Engineers in 1965, as no further agreements have
been entered into between the two parties. It fur-
ther argues that its assignment of the disputed
work was proper in light of certain factors usually
considered by the Board in these matters. The Em-
ployer contends that the disputed work should be
assigned to the employees represented by the La-
borers, relying on the following factors: employer
preference, economy and efficiency of operation,
safety, relative skills, and employer past practice.
The Engineers contends that the Board is with-
out jurisdiction to detemine the merits of the dis-
pute under Section 10(k) of the Act because the
parties have agreed upon a method for the volun-
tary adjustment of the dispute, for the reasons ex-
pressed more fully, supra. Alternatively, in the
event the dispute is properly before the Board, the
Engineers urges that the work be assigned to em-
ployees represented by it on the basis of collective-
bargaining agreements, employer and area practice,
awards of the JCB, relative skills, efficiency and
economy of operation, and the alleged job impact
of an award to employees represented by the La-
borers.
The Laborers contends that there is no agreed-
upon method for the voluntary adjustment of the
instant dispute and that the Employer's assignment
of the work to employees represented by the La-
borers was proper and in accord with the economy
and efficiency of operation and relative skills fac-
tors. While the Laborers contends that it does not
consider itself to be bound by the JCB, it offers no
rebuttal to the Engineers' allegation that the Labor-
ers is bound by means of its affiliation with the
CBTC.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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 dis-
pute.
1. It is undisputed that the Engineers picketed
the Centennial project site, and we find that such
picketing was to protest the Employer's assignment
of the disputed work to employees represented by
the Laborers. Accordingly, we find that reasonable
cause exists to believe that the Engineers violated
Section 8(b)(4)(D) of the Act. Additionally, the La-
borers does not dispute that it threatened to picket
the Centennial project if the Employer were to
reassign the disputed work to the employees repre-
sented by any other union. Accordingly, we find
that reasonable cause exists to believe that both the
Laborers and the Engineers violated Section
8(b)(4)(D) of the Act.
2. Before the Board will defer to an agreed-upon
method for settlement of a dispute, the agreement
must bind all the parties, including the Employer.6
Assuming arguendo that both Unions are bound to
the JCB by virtue of their membership in or affili-
ation with the CBTC, and that the Employer gen-
erally is subject to the terms of the Standard
Agreement in jurisdictional work disputes concern-
ing the Engineers by virtue of its 1965 Memoran-
dum of Agreement, nevertheless, it is undisputed
that the International Agreement between the
MCAA and the Laborers' International Union of
North America contains a clause obligating the
Employer to submit jurisdictional disputes to the
International Office of the Union for resolution and
that such procedure is exclusive and supercedes
any other procedure delineated in an agreement be-
tween a member of the MCAA and any local
union. Thus, assuming arguendo that the Laborers,
the Engineers, and the Employer all may be found
to have committed themselves to the use of the
JCB for the resolution of jurisdictional work dis-
putes, the existence of the equally binding, but con-
flicting, work dispute provision in the MCAA-La-
borers' International Agreement precludes a finding
of a determinative, agreed-upon method of dispute
resolution in the instant case."
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(bX4)(D) has occurred and that
there exists no agreed-upon method for the volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that this dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors. 8 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
6 N.LR.B. v. Plasterers Local Union No, 79. Operative Plasterers' and
Cement Masons' International Association, AFL-CIO ITexas State Tile &
Terrazo Co., et al.], 404 U.S. 116 (1971); Internarional Union of Operating
Engineers. Local No& 77, 77-A, 77-B, 77-C. 77-D,. AFL-CIO (Bricklaying.
Inc.), 252 NLRB 106, 107 (1980).
' See, e.g., Laborers' District Council of Washington. D.C. and Vicinity.
affiliated with Laborers' International Union of North America. AFL-CIO
(Western Caissons. Inc.), 240 NLRB 1160 (1979).
N.LR.B. v. Radio & Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Colum-
bia Broadcasting System], 364 U.S. 573 (1961).
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
monsense and experience reached by balancing
those factors involved in a particular case."
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
The Employer has no collective-bargaining
agreement with the Laborers. Nevertheless, the La-
borers' International Union of North America's
agreement with the MCAA was modified on June
1, 1981,10 to include "forklifts for brick masons"
within the work jurisdiction of the members of the
Laborers' International Union of North America.
Likewise, the agreement entered into between the
Mid-American Regional Bargaining Association (as
bargaining agent for the BAC) and the Engineers,
the terms of which are adopted in the Employer's
1965 Memorandum of Agreement with the Engi-
neers, provides wage rates for brick forklift oper-
ation. Because there are conflicting collective-bar-
gaining agreements, both of which indicate that
forklift operation is within the work jurisdiction of
the respective unions, we find that this factor does
not favor an award to employees represented by
either union.
2. Company past practice
The Employer has performed numerous masonry
subcontract jobs in the DuPage and Cook County,
Illinois, areas. Although the forklift was not used
until August 1981 on the Centennial project, the
Employer has used forklift operators on a number
of projects in the past. Record testimony reveals
that only employees of the Laborers have been uti-
lized for forklift operation on the Centennial
project.
While the Engineers contends in its brief to the
Board that the Employer "has continuously em-
ployed" employees which it represents for forklift
operation in the past, record testimony of a compa-
ny agent reveals that the Employer intermittently
used employees represented by both the Laborers
and the Engineers for forklift operation in prior
construction projects, although the latter have ob-
tained "probably the majority" of the assignments.
The same agent testified that he had assigned the
forklift work to employees represented by the La-
borers whenever possible, except when pressure
was applied on the Employer to make an alterna-
tive assignment or suffer work strife. Accordingly,
we find that the Company's past practice is a neu-
tral factor which does not favor an award to em-
ployees represented by either union.
International Association of Machinists, Lodge No. 1743, AFL-CIO (.
A. Jones Construction Co.), 135 NLRB 1402 (1962).
10 The dispute in question did not arise until August 31, 1981.
3. Relative skills
The record indicates that employees represented
by the Laborers require initial instruction by the
foreman in order to undertake the task of forklift
operation. While members of the Engineers do not
require similar instruction, operation of the forklift
is simple; it requires only minimal instruction, and
there is no evidence showing that the Employer
has been dissatisfied with the work performance of
the Laborers on the jobsite. Accordingly, this
factor does not favor an award to employees repre-
sented by either union.
4. Economy and efficiency of operation
The record indicates that the forklift is in oper-
ation about 3 hours a day on the Centennial
project. When the forklift is not in operation, em-
ployees represented by the Laborers assist the
bricklayers in the performance of their work by
mixing mortar, spreading mortar on the mortar-
boards, cleaning up, or performing miscellaneous
tasks. Record testimony conflicts, however, with
regard to the willingness of employees represented
by Engineers to engage in the aforementioned an-
cillary tasks when the Employer assigned the fork-
lift operation to them on prior projects. At the
hearing, a field superintendent for the Employer
contended that employees represented by the Engi-
neers failed to perform these necessary ancillary
tasks during the substantial time when the forklift
was idle on past projects. According to a witness
for the Engineers, however, the operating engi-
neers' work was not so limited. In addition, em-
ployees represented by the Engineers are employed
on the basis of a guaranteed 8-hour workday; the
Laborers work rules contain no such restriction.
According to the record, employees represented by
the Engineers must be paid for the entire day once
they have commenced the job, regardless of in-
clement weather. Therefore, these factors in combi-
nation favor awarding the work to employees rep-
resented by the Laborers.
5. Joint Conference Board determinations
In certain prior disputes involving the operation
of a forklift on other sites involving other employ-
ees, the JCB has awarded the disputed work to the
Engineers over the Laborers. In addition, submis-
sion of the instant dispute to the JCB resulted in a
work award for the Engineers. Nevertheless, al-
though JCB decisinr, awarding the disputed work
to employees represented by the Engineers may be
a factor to be considered, they are not controlling,
because there is no evidence in the record explicat-
ing the factors relied on by the JCB in reaching its
1150
CONSTRUCTION AND GENERAL LABORERS' LOCAL 118
determinations which would enable us to determine
the degree of deference that these determinations
should be accorded. ' Therefore, this factor does
not favor an award to employees represented by
either union.
6. Employer preference
The Employer has assigned the disputed work to
employees represented by the Laborers and has ex-
pressed its preference that the disputed work be
performed by them. Employer preference therefore
favors an award to employees represented by the
Laborers.
7. Job impact of the award
In its brief to the Board, the Engineers contends
that an award of the disputed work in favor of the
Laborers would destroy the Engineers' bargaining
unit completely, but would not have a destructive
effect on employees represented by the Laborers.
Inasmuch as the Employer had never used the
forklift previously on this project and employees
represented by the Engineers had not been work-
ing for the Employer on the project, we find that
the Engineers has no grounds for arguing that an
award contrary to its interests would result in the
complete displacement of employees it represents.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by the
Laborers are entitled to perform the work in dis-
pute. In making this determination, we are award-
ing the work in question to the employees of D. H.
Johnson Company who are represented by the La-
borers, but not to that Union or its members. The
present determination is limited to the particular
controversy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of D. H. Johnson Company who
are represented by Construction and General La-
borers' Local 118, Laborers' International Union of
North America, AFL-CIO, are entitled to perform
the work of operating the forklift at the 900 East
Centennial apartment construction project in
Mount Prospect, Illinois.
I International Brotherhood of Boilermakers& Iron Ship Builders Forgers
and Helpers. Local Unon No. 72, .4FI.-CIO, 247 NLRB 73, 75 (1980).
2. International Union of Operating Engineers,
Local 150, AFL-CIO, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
or require D. H. Johnson Company to assign the
disputed work to employees represented by that
labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers, Local 150, AFL-CIO,
shall notify the Regional Director for Region 13, in
writing, whether or not it will refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disput-
ed work in a manner inconsistent with the above
determination.
MEMBER FANNING, dissenting:
Contrary to my colleagues, I would not deter-
mine the dispute herein. I find that all parties are
bound to abide by the work award of the Joint
Conference Board (JCB). Accordingly, as there
exists an agreed-upon method for the voluntary set-
tlement of this jurisdictional dispute, the notice of
hearing should be quashed.
The facts and the contentions of the parties re-
garding the agreed-upon method of settlement are
fully set forth by my colleagues. Briefly, the Engi-
neers contends that all parties have obligated them-
selves to abide by the awards of the JCB. Contrar-
ily, the Employer and the Laborers assert that they
are not bound to the decisions of the JCB. They
argue that, by virtue of becoming obligated to the
dispute resolution procedures of the collective-bar-
gaining agreement between the Laborers Interna-
tional and the Masonry Contractors Association of
America (MCAA), their commitment to be bound
by decisions of the JCB has been superceded and
extinguished.
First, assuming-as do my colleagues-that all
parties herein have committed themselves to the
use of JCB for the resolution of jurisdictional work
disputes, I would not find that the existence of a
second "equally binding yet conflicting" work dis-
pute provision defeats the viability of the first obli-
gation. Rather, so long as all parties are bound by
one of two dispute settlement procedures, there
exists a binding agreed-upon method of settlement.
Under these circumstances, the existence of the
other settlement procedure becomes totally irrele-
vant.
Second, assumptions aside, I find all parties
herein are, in fact, bound by the awards of the
JCB. I reject the argument of the Employer and
the Laborers that they are now obligated only to
the dispute resolution procedures of the Laborers-
MCAA contract. Neither of these parties has ever
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given proper notice so as to withdraw from and
terminate their respective commitments to honor
decisions of the JCB. Absent such notice, I would
not find that the work dispute provision of the La-
borers-MCAA agreement, merely by its terms, has
ended the obligation of these parties to abide by
the awards of the JCB. If that effect is given to the
work dispute provision of the Laborers-MCAA
agreement, it would permit and encourage parties
to switch and/or abandon their private settlement
procedures whenever they deemed it advantageous
to do so. 2 In my judgment, the decision of my
colleagues permits these parties to do just that.
That is, finding it to their advantage to avoid their
12 See generally my dissent in Laborers' District Council of Washington.
D.C. and Vicinity, affiliated with Laborers International Union of North
America, AFL-CIO (Western Caissonw Inc.), 240 NLRB 1161 (1979).
commitment to the awards of the JCB, the Em-
ployer and Laborers seek to rely on another work
dispute provision to justify their actions and gain
the Board's sanction of the Employer's work as-
signment.
Congressional policy clearly is to encourage the
voluntary adjustment of jurisdictional disputes. Ac-
cordingly, when parties, as here, have bound them-
selves to an agreed-upon method of settlement,
they should be required to abide by their commit-
ments and honor the decisions arrived at thereby.
Thus, I would quash the notice of hearing in this
case.'
13 See generally my dissents in Construction and General Laborers
Local Union Na 449 Connecticut Laborers District Council. Laborers Inter-
noional Union of North America AFL-CIO (Modern Accoustics, Inc.), 260
NLRB 883 (1982), and Millwrights Local Union Na 1862 (Jelco. Inc.), 184
NLRB 547, 549 (1970).
1152