International Union of Operating Engineers, Loc. 132

National Labor Relations Board - Board Decisions

Jan 17, 1975

216 N.L.R.B. 228 (N.L.R.B. 1975)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
132, AFL-CIO and Val Colussi & Son, Inc. and
Laborers' International Union of North America,
Locals 379 and 714, AFL-CIO.
International Union of Operating Engineers, Local
132 A, B & C, AFL-CIO and J . Regis Wilk, Inc.
and Laborers ' International Union of North Ameri-
ca, Local 379, AFL-CIO. Cases 6-CD-544 and 6-
CD-545
January 17, 1975
DECISION AND DETERMINATION OF
DISPUTES
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Val Colussi & Son, Inc.,' and by
J. Regis Wilk, Inc.,2 on September 16, 1974 ,3 alleging
that International Union of Operating Engineers,
Local 132, AFL-CIO, hereinafter referred to as
Local 132, has violated Section 8(b)(4)(D) of the Act.
Pursuant to an Order Consolidating Cases and
Notice of Hearing issued on October 3, a hearing was
held on October 17, at Morgantown, West Virginia,
before Hearing Officer Janet G. Harper. Colussi,
Wilk, Local 132, and Laborers' International Union
of North America, Locals 379 and 714, hereinafter
called Laborers, 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, Colussi and Local
132 filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
With respect to Colussi, the parties stipulated, and
we find, that Morgantown Nursing Center, Inc., a
West Virginia corporation with its principal office in
Waynesburg, Pennsylvania, is engaged in the con-
struction of the Morgantown Nursing Center, Maple
Avenue, Morgantown, West Virginia. The value of
this project is in excess of $750,000. Colussi, a
Pennsylvania corporation with its principal office in
Eighty Four, Pennsylvania, is engaged as a masonry
contractor in the building and construction industry.
Colussi is currently engaged under a contract with
Morgantown Nursing Center, Inc., and the value of
this contract is approximately $115,000. During the
past 12-month period, a representative period,
Colussi received goods valued in excess of $50,000
from points directly outside the Commonwealth of
Pennsylvania for use within the Commonwealth of
Pennsylvania.
With respect to Wilk, the parties stipulated, and we
find, that Crown American Corp. is currently
engaged as a general contractor in construction of an
addition to Middletown Mall, Routes 250 and 73,
Fairmont, West Virginia. Wilk, a corporation with its
principal office in Trafford, Pennsylvania, is engaged
as a masonry contractor in the building and
construction industry. Wilk is currently engaged in a
contract with Crown American Corp. to do all
masonry work at the Middletown Mall. During the
past 12-month period, a representative period, Wilk
received goods valued in excess of $50,000 from
directly outside the Commonwealth of Pennsylvania
for use within the Commonwealth of Pennsylvania.
It is stipulated, and we find, that the Employers are
engaged in commerce within the meaning of Section
2(6) and (7) of the National Labor Relations Act, as
amended, 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 Local 132
and Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
There are two construction sites involved herein:
(1) Morgantown Nursing Center , Maple Avenue,
Morgantown, West Virginia, and (2) Middletown
Mall, Routes 250 and 73, Fairmont, West Virginia.
As noted above, Colussi is to do all masonry work at
Morgantown Nursing Center under a subcontract
with Morgantown Nursing Center , Inc. Wilk is
likewise to do all masonry work at Middletown Mall
under a subcontract with Crown American Corp.
For approximately 10 years , Colussi has been a
member of a multiemployer association of masonry
contractors , the Mason Contractors Association of
i Hereinafter referred to as Colussi or Employer.
2 Hereinafter referred to as Wilk or Employer
216 NLRB No. 42
a All dates herein refer to 1974 unless otherwise noted.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOC. 132
America, Inc.,4 which has, since 1955, entered into
successive agreements with the Laborers. Article III
of the current agreement provides, inter alia, as
follows:
Jurisdiction. The work jurisdiction covered by this
Agreement when performed by members of the
ASSOCIATION ("Employer") shall include that
work which has been historically or traditionally
or contractually assigned to members of the
LABORERS ' INTERNATIONAL UNION OF
NORTH america in the tending of Masons
including unloading, mixing, handling , and con-
veying of all materials used by Masons by any
mode or method ....
Wilk is not a member of any employer association
nor party to any agreement with the Laborers
International. Both Wilk and Colussi, however, are
bound as signatory parties to a collective-bargaining
agreement, dated June 1, 1973, to May 31, 1976, with
the Laborers' District Council of Charleston, West
Virginia, which includes Locals 379 and 714 herein.
Neither Employer has a contract with Local 132 or
the International Union of Operating Engineers, nor
do they employ members of Local 132 at the jobsites
involved.
Colussi, on August 26, and Wilk, on or about
September 1, brought forklifts onto their respective
jobsites. The machines were to be used exclusively
for the tending of masons and the handling and
conveyance of materials to the masons. Based on
current contracts with Laborers and on alleged past
company practice in the area, each Employer
assigned the operation of its forklift to its employees
who were represented by Laborers, Locals 379 and
714.
Within a few days of the assignment made by each
employer, representatives of Local 132 demanded, in
telephone conversations and in meetings at the
jobsites, that the operation of the forklift be assigned
to members of Local 132. The record contains
unrefuted testimony that Wilson, Local 132's busi-
ness agent, had conversations concerning the work in
dispute with Victor Colussi, Colussi's field represent-
ative, and with J. Regis Wilk, Wilk's company
president, and that he raised the threat of picketing
at the jobsites if the forklift assignments were not
changed. Colussi and Wilk declined to change their
work assignment and each continued to employ
laborers in operating its forklift.
On September 16, picketing was commenced by
Local 132 at both jobsites. Picket signs used in each
action stated that the Employers had "no contract
4 Hereinafter referred to as the MCAA.
5 Colussi filed a written brief, while Wilk relied on its testimony
229
with Local 132." The picketing continued until
September 24, when Local 132 agreed to cease
picketing, pending the outcome of this proceeding.
The Employers have proceeded to perform the
masonry work, which was estimated to be 90 percent
completed at each jobsite as of the hearing date.
B. The Work in Dispute
The parties agree that the work in dispute involves
the operation of a forklift for the sole purpose of
tending masons at the Morgantown Nursing Center
and Middletown Mall jobsites. It is stipulated that
the forklift involved is a piece of equipment that is
ridden by the operator , is gasoline or diesel powered,
and lifts materials and equipment to heights- of
between 28 to 35 feet.
C. Contentions of the Parties
The Employers assigned the work in dispute to
their own employees represented by the Laborers
and favor that assignment rather than one to
members of Local 132 . Colussi and Wilk rest their
position on collective -bargaining agreements with
Laborers , relative skills and work involved , economy
and efficiency of operations , and alleged company,
industry , and area practice.5
The Laborers position, as stated at the hearing, is
that the Employers ' assignment of the disputed work
to employees which it represents is a proper
assignment in accord with current contractual
obligations and with past practice whereby laborers
have traditionally been assigned the work of tending
masons.
Local 132 claims the disputed work , contending
that the operation of all forklifts, even when used
exclusively for tending masons , comes within their
jurisdiction. Local 132 further contends that the
Operating Engineers and the Laborers International
Unions have an agreement, signed in 1954, which
awards jurisdiction of the work in dispute to
employees represented by Operating Engineers, and
that the National Joint Board for Settlement of
Jurisdictional Disputes has in the past awarded such
work to Local 132.
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a 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 there is no agreed-upon method, which is
presented at the hearing in which it essentially adopted Colussi 's position.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
binding on all parties, for the voluntary adjustment
of the dispute.
The record herein shows, and Local 132 does not
deny, that representatives of Local 132 demanded
assignment of the disputed work, suggested the
possibility of picketing if the demanded assignment
were not made, and picketed Employers' jobsites
from September 16 until September 24 after the
Employers continued to use employees represented
by Laborers to operate forklifts in tending masons.
We conclude 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 us for
determination pursuant to Section 10(k) of the Act.
The parties do not contend that there is any other
method for adjustment of the dispute.
We find this factor favors awarding the disputed
work to employees represented by Laborers.
2. The Employers' assignment and past
practice
It is undisputed that the Employers assigned the
work in dispute to employees represented by Labor-
ers. The record shows that these assignments were in
accord with the Employers' consistent past practice
of employing Laborers to tend masons . It further
appears that Colussi and Wilk have assigned laborers
to operate forklifts when used exclusively for tending
masons . Consequently, we find this factor favors the
assignment of the disputed work to employees
represented by Laborers.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after taking
into account the evidence supporting the claims of
the parties and balancing all relevant factors .6
The following factors are relevant in support of the
contentions of the parties herein:
1. Collective-bargaining agreements
Neither Laborers nor Local 132 has been certified
by the Board as bargaining agent of the Employers'
employees.
Colussi, as a member of the MCAA, is bound to
the agreement between that employer association
and the Laborers International which recognized the
work jurisdiction of Laborers in the "tending of
Masons including . . . conveying of all materials
used by Masons by any mode or method ...."
Wilk and Colussi have each signed the same
.collective-bargaining agreement covering members
of Laborers Locals 379 and 714 who are employed
by the Employers at the jobsites involved herein.
Neither Employer employs members of Local 132 at
these sites . Local 132 correctly noted that Laborers
does not specifically refer to the job classification of
"Forklift Operator," but it does specifically refer to
"Brick Mason Tenders" and "Stone Mason Tend-
ers."
Local 132 does not have a contract with either
Employer.
6 N.LR.B. v. Radio & Television Broadcast Engineers Union , Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573, 586 (1%1); International Association of
Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Comipany)
135 NLRB 1402,1411 (1%2).
s During the past 2 years, Colussi has had approximately 10 masonry
contracting jobs in the area, on only 5 of which did he use a forklift. In the
three instances when forklifts were used exclusively for tending masons,
laborers were assigned to operate the machines ; operating engineers
3. Industry and area practice
Local 132 claims that the operation of forklifts has
traditionally been within its jurisdiction in the
construction industry at large and in the area. It
introduced testimony and a collective-bargaining
agreement as evidence that other general and
masonry contractors in the area specifically recog-
nize the Operating Engineers claim in this respect
and have employed operating engineers on forklift
assignments.
All parties are agreed that Local 132 has a proper
claim to forklift assignments when the machines have
a multipurpose use at the construction site. These
facts favor Local 132.
On the other hand, the Employers' representatives
testified that forklifts are not customarily used in the
masonry industry and that when forklifts are used
exclusively in tending masons, the practice has been
to assign the work to laborers.? The record did not
reveal whether any of the area masonry contractors
said by Local 132's representative to have employed
operating engineers on forklifts made such an
assignment when the forklifts were used exclusively
to tend masons.
Based on the entire record, this factor does not
favor the employees represented by either Union and
is found to be inconclusive.
4. Relative skills and work involved
There is no showing that the operation of the
forklift in dispute requires a degree of skills not
handled the forklifts on two multipurpose assignments.
In the same 2-year period , Wilk has had approximately eight or nine
masonry jobs, using forklifts to tend masons at three sites . Laborers
operated forklifts to tend masons on two jobs ; an operating engineer was
employed for the forklift assignment in the other instance , a multipurpose
operation. As to this latter job, Wilk originally assigned the work to a
laborer but the general contractor changed the assignment to an operating
engineer after "problems" arose.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOC. 132
possessed by laborers. That operating engineers had
the requisite skills to perform the job was not
questioned. Colussi and Wilk did testify, however,
that the nature of the work involved in tending
masons required a knowledge of materials, place-
ment , and procedure with which the laborers were
familiar but the operating engineers were not.
We find that this factor favors awarding the
disputed work to employees represented by Laborers.
5. Economy and efficiency of operations
When forklifts are used by the Employers exclu-
sively for tending masons, they are in actual
operation for only a few hours of each workday. The
Employers therefore testified that it is more efficient
and economical for them to use laborers for the work
in dispute for the following reasons : (1) Since the
Employers use their laborer employees for work
other than forklift operation, the Employers would
enjoy less operational flexibility if they had to use
operating engineers , who would be limited to their
forklift assignment ; (3) it is necessary to assign a
laborer to assist the operating engineer on the forklift
in order to inform him of the materials needed in
tending masons ; (3) operating engineers , who are
employed on the basis of a guaranteed 8-hour
workday wage, would be paid a full day's wage even
if their assigned task required only 1 or 2 hours'
work.
We find therefore that this factor favors awarding
the disputed work to employees represented by
Laborers.
6. Joint Board determinations and
International agreements
Local 132 introduced into evidence a ruling of the
National Joint Board for the Settlement of Jurisdic-
tional Disputes, dated December 5-6, 1962, involving
Laborers, Local 132, and a contractor and masonry
subcontractor, not involved herein, at a jobsite in
Wheeling, West Virginia. The Joint Board awarded
operation of forklifts in this dispute to Local 132. We
find that the award submitted into evidence by
Respondent is neither binding on the Employers nor
controlling in the instant dispute, although it repre-
sents a factor tending to favor Local 132.
Local 132 introduced an agreement signed by the
Internationals of the Operating Engineers and the
Laborers in 1954. The agreement reads in pertinent
part:
(1) With regard to fork lifts and other similar type
of equipment, the operation of same will be by
members of the International Union of Operating
Engineers; a member or members of the Interna-
231
tional Hod Carriers', Building and Common
Laborers' Union of America [organizational
predecessor to Laborers' International Union of
North America] will work in connection withsaid
equipment for the purpose of seeing to it that the
load is properly on the lift and to do any
necessary tending in the event that part of the
load spills, etc., in which event the Laborer-
Tender will reset the material and will also give
the necessary signals to the Engineer when the
equipment is at the proper level or position;
where necessary a Laborer will be on the scaffold
in order to assist in the unloading of the fork lift
or loader, in order that the material may be at the
proper location for the use of the mechanic that
shall install it.
We find that the Employers are not parties to the
agreement and are therefore not bound by it. In
addition, we find that the agreement is not disposi-
tive of the present case which involves the use of
forklifts solely to tend masons and thus does not
favor either party.
Conclusions
Upon consideration of all relevant factors, we
conclude that the Employers' employees who are
represented by Laborers are entitled to the disputed
work based on the collective-bargaining agreements,
the Employers' assignment and past practice, the
relative skills and work involved, and economy and
efficiency of operations. In making this determina-
tion , we are assigning the work in question to
employees represented by Laborers and not to
Laborers or its members.
This award is limited to the work in dispute in this
case.
DETERMINATION OF DISPUTES
Pursuant to Section 10(c) 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
hereby makes the following Determination of Dis-
putes:
1. Employees employed by Val Colussi & Son,
Inc., as laborers and currently represented by
Laborers' International Union of North America,
Locals 379 and 714 , AFL-CIO, are entitled to the
work involving the operation of a forklift for the sole
purpose of tending masons at the Morgantown
Nursing Center construction site, Maple Avenue,
Morgantown , West Virginia.
2. Employees employed by J. Regis Wilk, Inc., as
laborers and currently represented by Laborers'
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of North America, Local 379,
AFL-CIO, are entitled to the work involving the
operation of a forklift for the sole purpose of tending
masons at the Middletown Mall construction site,
Routes 250 and 73, Fairmont, West Virginia.
3. International Union of Operating Engineers,
Local 132, AFL-CIO, and International Union of
Operating Engineers , Local 132 A, B & C, AFL-
CIO, are not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require the aforesaid
Employers to assign the above-described work to
operating engineers who are represented by those
labor organizations.
4. Within 10 days from the date of this Decision
and Determination of Disputes, International Union
of Operating Engineers , Local 132, AFL-CIO, and
International Union of Operating Engineers, Local
132 A, B & C, AFL-CIO, shall notify the Regional
Director for Region 6, in writing , whether they will
refrain from forcing or requiring the Employers, by
means proscribed in Section 8(b)(4)(D ), to assign the
work in dispute to employees represented by Interna-
tional Union of Operating Engineers , Local 132,
AFL-CIO, and International Union of Operating
Engineers, Local 132 A, B & C, AFL-CIO.