Hod Carriers' Union Local 116

National Labor Relations Board - Board Decisions

Dec 24, 1970

187 N.L.R.B. 482 (N.L.R.B. 1970)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hod Carriers' Union Local No. 116, Laborers' Interna-
tional Union of North America , AFL-CIO, and E.
& S. Masonry , Inc., and Operating Engineers Local
No. 3, International Union of Operating Engineers,
AFL-CIO. Case 20-CD-291
December 24, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by E. & S. Masonry, Inc., alleging in
substance that Hod Carriers' Union Local No. 116,
Laborers' International Union of North America,
AFL-CIO, herein called Hod Carriers, has violated
Section 8(b)(4)(D) of the Act. Upon appropriate
motion, Operating Engineers Local No. 3, Interna-
tional Union of Operating Engineers, AFL-CIO
(Party to Dispute), herein called Operating Engineers,
and California Conference of Mason Contractor
Associations, Inc., were permitted to intervene in this
proceeding.
A hearing was held before Hearing Officer David J.
Salniker, on June 18, 1970. All parties appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereafter,
briefs were filed by all parties, with E. & S. Masonry,
Inc., and (Intervenor) California Conference of
Mason Contractor Associations, Inc., submitting a
joint brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that E. & S. Masonry, Inc., a
California corporation with a principal place of
business in Alameda County, California, is engaged in
the subcontracting of masonry work; that its gross
income annually exceeds $500,000; that it is a
member of a multiemployer association, the Mason
Contractors Association of the Greater East Bay,
whose members annually purchase and receive
supplies in excess of $250 ,000 directly from sources
located outside the State of California ; and that it is
represented for purposes of collective bargaining by
said Association . We find that E. & S. Masonry, Inc.,
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Hod
Carriers and Operating Engineers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Prior to the events giving rise to the dispute herein,
the Charging Party, E. & S. Masonry, Inc., entered
into a contract to perform certain masonry work for
the general contractor, Robert E. McKee Company,
at Laney College (Peralta Junior College School
District) in Oakland, California.
In the performance of the masonry work E. & S.
Masonry uses its own forklift and a tusky hoist. The
forklift is used periodically throughout the workday
to transport brick and other materials from a stockpile
to the specific areas where the bricklayers are
working. Its actual running time during an average
day is approximately 1 hour. The tusky hoist is a
semistationary tower with a motor-driven platform
that moves up and down to predesignated stopping
points and is activated by pulling a cable. It is used to
transport primarily mortar, and secondarily other
masonry supplies, from one height to another. Like
the forklift it is utilized infrequently, though periodi-
cally, during the day. Its total running time is
approximately 1 hour per day.
The work in question commenced in March 1969
and at all times thereafter E. & S. Masonry assigned
the operation of this equipment to its employees who
are represented by the Hod Carriers. The assignment
was made pursuant to an agreement dated July 1,
1967, between the Hod Carriers and the Mason
Contractors Association of the Greater East Bay.
In April 1969 a representative of the Operating
Engineers approached the Employer and demanded
that the operation of the two pieces of equipment be
awarded to employees represented by said Union.
Repeated requests that E. & S. Masonry sign a
contract with the Operating Engineers were rejected
on the grounds that the Company already had a
contract with the Hod Carriers.
Also in April 1969 the Operating Engineers advised
the general contractor, McKee Company, with whom
they had a collective-bargaining agreement, that it
187 NLRB No. 81
HOD CARRIERS' UNION LOCAL 116
would require that company "to make whole,"
pursuant to that agreement, any of its members who
may have lost employment as a result of E. & S.
Masonry's use of individuals represented by the Hod
Carriers in the performance of the disputed work.
Subsequently, in October 1969 Operating Engineers
demanded the payment of $8,000 which McKee
Company, in turn, withheld from amounts due E. & S.
Masonry.
When Elwood Smith, principal owner of E. & S.
Masonry, informed Luther Coree, business agent of
the Hod Carriers, of the Operating Engineers de-
mands, Coree responded that if the work were
reassigned to the operating engineers, the Hod
Carriers would walk off the job. E. & S. Masonry was
also advised that the Union would have no trouble
obtaining strike sanction on this matter. The prospect
of sanctions was confirmed in a subsequent conversa-
tion between Smith and Lamar Childress, secretary of
the Building Construction Trades Council of Alame-
da County. The strike warning was repeated in a letter
from the Hod Carriers to E. & S. Masonry dated
October 31, 1969. The Employer did not reassign the
disputed work.
B. The Work in Dispute
The work here in dispute involves the operation of
the forklift and the tusky hoist used by E. & S.
Masonry, Inc., at the Laney College jobsite in
Oakland, California.
C. Contentions of the Parties
E. & S. Masonry and California Conference of
Mason Contractor Associations , Inc., herein called
California Conference , contend that assignment of
the disputed work to employees represented by the
Hod Carriers is required by the terms of the
agreement between Mason Contractors Association
of the Greater East Bay (which is part of the
California Conference) and the Hod Carriers, to
which agreement E. & S. Masonry is bound. E. & S.
Masonry also contends , among other things , that its
work assignment is consistent with industry and area
practice and is further supported by considerations of
efficiency and economy . It also asserts that it is not a
party to any agreement providing for voluntary
adjustment of the dispute in question.
The position of the Hod Carriers accords with that
of the Employer.
In its brief , the Operating Engineers argues that the
matter before us is not a jurisdictional dispute and,
accordingly , that the Board is without jurisdiction to
make an assignment of the work in question.
I Whatever claim may have been made to the contrary was abandoned
by the Operating Engineers in its brief to the Board upon conclusion of the
483
Specifically, the Operating Engineers denies that E. &
S. Masonry, the Charging Party herein, is a neutral
enmeshed in a dispute not of its own making. Its
position is that by filing charges against the Hod
Carriers, which represents the employees who have
been assigned the disputed work, in the absence of a
stated intention to reassign the work in question to the
Operating Engineers, E. & S. Masonry has become
involved in a joint effort with the Hod Carriers to
enforce the latter's contract. It is the view of the
Operating Engineers that, in the circumstances of this
case, only it could have engaged in conduct potential-
ly violative of Section 8(b)(4)(D) of the Act.
D. Applicability of the Statute
Before the Board may proceed with a determination
of 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. The record
shows that the Respondent Union on two occasions
warned the Employer that the Hod Carvers would
strike if the disputed work were reassigned to the
Operating Engineers.
The Operating Engineers urges that there is insuffi-
cient evidence of unlawful conduct. We disagree and
find reason to believe that a violation of Section
8(b)(4)(D) may have occurred. It would serve no
useful purpose to ignore the incidents described above
and by so doing avoid our responsibility to determine
the underlying dispute. Only by making an affirma-
tive award of the work here in issue can we reduce the
likelihood of unlawful conduct and thereby promote
stability in labor relations.
Moreover, nothing in the Act warrants the with-
holding of the Board's processes from employers who
may be coerced by the conduct of one of the
competing groups of employees merely because the
alleged unlawful conduct is engaged in by the group
which momentarily enjoys the coveted assignment.
The fact remains that both groups persist in laying
claim to the disputed work.
Based upon the foregoing, and in the absence of any
claim that there exists an agreed-upon method for the
adjustment of this dispute,' we find that there is
reasonable cause to believe that a violation of Section
8(b)(4)(D) has occurred and that the dispute is
properly before the Board for determination.
E. The Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to various relevant factors.
As the Board has stated, its determination in a
hearing held herein
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdictional dispute case is an act of judgment based
upon commonsense and experience in the weighing of
these factors. The following factors are relevant in
making a determination of the dispute before us.2
1. Collective-bargaining agreement
The Employer operates under a contract with Hod
Carriers which requires that it assign the work of
operating forklifts and tusky hoists to employees
represented by the Hod Carriers.3 It has no contract
with the Operating Engineers and employs no
operating engineers.
2. Company practice
The past and present practice is to assign the
operation of both the forklifts and the tusky hoists to
its employees who are represented by the Hod
Carriers.
3. Industry and area practice
Considerable testimony was taken regarding the
practice of other mason subcontractors in the Bay
Area and on the West Coast. With only one or two
exceptions, masonry subcontractors in this region
have assigned the manning of forklifts and hoists to
employees represented by the Hod Carriers.4
4. Efficiency and economy
The record shows that the equipment here involved
is not in continuous operation at the jobsite and that
each is used on an average of no more than 1-1/2
hours per day. If individuals represented by the
Operating Engineers operated this equipment they
would be unable to perform other work when the
equipment is idle. Employees represented by the Hod
Carriers, on the other hand, can be and are used to
perform other work during such periods of idleness.
It is clear from the foregoing that assignment of the
work in question to individuals represented by the
Operating Engineers would increase costs without
increasing efficiency.
2 Another factor normally considered relevant is the skills involved for
the performance of the disputed work . In the instant case the record shows
that inasmuch as the machines in question do not require special skills to
operate , individuals represented by the Hod Carriers and others
represented by the Operating Engineers are equally qualified for the work
3 Article II, section 2 , of this contract, between the Hod Carvers and
Mason Contractors Association of the Greater East Bay, states in pertinent
part
Work Covered. This Agreement shall cover all work coming within
the jurisdiction of the Union Without limiting the scope of the work
covered hereby, it is agreed that the work shall include , but not be
limited to, making mix , preparing, tempering and conveying all
Conclusions
Based upon the entire record, and after full
consideration of all relevant factors, we find that these
factors favor the assignment of the disputed work to
the employees represented by the Hod Carriers and
conclude that these employees are entitled to perform
the work here in dispute.
Scope of the Award
E. & S. Masonry requests a broad order on behalf
of all the members of the Mason Contractors
Association or, alternatively, on behalf of "all jobs in
the state of [California ] on which similar disputes may
arise involving the contractor or any member of the
contractor association." However, the record before
us does not indicate that the work in dispute has been
a recurring source of controversy in the Greater East
Bay Area or that other similar disputes may occur in
the future. Therefore, we shall restrict the scope of our
determination herein to the specific jobs that 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 employed as hod carriers by E. & S.
Masonry, Inc., currently represented by Hod Carriers'
Union Local No. 116, Laborers' International Union
of North America, AFL-CIO, are entitled to perform
the work of operating the forklift and the tusky hoist
on the Laney College jobsite (Peralta Junior College
School District) in Oakland, Alameda County,
California.
2. Operating Engineers Local No. 3, International
Union of Operating Engineers, AFL-CIO, is not and
has not been entitled to perform said disputed work.
materials used by brickmasons , stonemasons and tuck pointers,
whether done by hand or machine. All mechanical equipment
replacing in whole or in part the work of Hod Carriers shall be cleaned
and operated by Had Carriers This includes mixers, grout pumps,
wheelbarrows, forklifts, boom winches, tusky hoists, etc The Employer
signatory hereto, agrees to hire personnel in accordance with Article
III to perform this work . (Emphasis supplied.]
Since the testimony was conclusive on this aspect , we do not find it
necessary to determine whether the questionnaires on this subject
distnbuted by the California Conference were properly rejected as hearsay
by the Hearing Officer