Laborers (Harris Masonry)

National Labor Relations Board - Board Decisions

Jun 10, 1991

303 N.L.R.B. 313 (N.L.R.B. 1991)

313
303 NLRB No. 45
LABORERS (HARRIS MASONRY)
1 Prior to the hearing, the hearing officer was notified by counsel for the
Operating Engineers that it did not intend to appear or be represented at the
hearing concerning the instant matter. Neither then nor at any other time did
the Operating Engineers request postponement of the proceeding or register
any objection to its going forward.
Laborers’ District Council of Western Pennsylvania
a/w Laborers’ International Union of North
America, AFL–CIO and Harris Masonry Com-
pany and International Union of Operating En-
gineers, Local 66, AFL–CIO. Case 6–CD–881
June 10, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
The charge in this Section 10(k) proceeding was
filed on October 22, 1990, by Harris Masonry, Inc. al-
leging that the Respondent, Laborers’ District Council
of Western Pennsylvania a/w Laborers’ International
Union of North America, AFL–CIO (Laborers) vio-
lated Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with an
object of forcing Harris Masonry, Inc. to assign certain
work to employees it represents rather than to employ-
ees represented by International Union of Operating
Engineers, Local 66, AFL–CIO (Operating Engineers).
The hearing was held November 30, 1990, before
Hearing Officer Barton A. Meyers.
I. JURISDICTION
Harris Masonry, Inc., a Pennsylvania corporation, is
engaged as a masonry contractor in commercial and in-
dustrial construction. Harris Masonry, Inc. has an of-
fice and place of business located in the Common-
wealth of Pennsylvania. During the most recent 12-
month period, Harris has performed services valued in
excess of $50,000 on jobsites located outside the Com-
monwealth of Pennsylvania. During the same period,
Harris purchased goods and materials valued in excess
of $50,000 directly from suppliers located outside the
Commonwealth of Pennsylvania. The parties stipulate,
and we find, that Harris Masonry, Inc. is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that the Laborers and Operating Engi-
neers are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute1
In September 1990, Harris Masonry, Inc. com-
menced work as a subcontractor for general contractor
Dick Corporation at the construction site of a medical
office building, South Hills Health System, located at
the Jefferson Hospital in Pittsburgh, Pennsylvania.
Harris Masonry, Inc. performs the brick and block ma-
sonry work on the job. A large type of forklift, the
‘‘Pettibone’’ or ‘‘Lull’’ forklift, is used to raise mate-
rials to scaffolding at the upper stories of the building
under construction. It is the operation of the forklift
that is in dispute.
Lee Harris is the president of Harris Masonry, Inc.,
which is signatory to a collective-bargaining agreement
with the Laborers. On commencing work at the South
Hills Health System project, Harris Masonry, Inc. as-
signed the work of operating the forklift to employees
represented by the Laborers. About October 12, 1990,
after learning of this assignment, Operating Engineers,
which has a collective-bargaining agreement with Dick
Corporation, contacted Dick Corporation indicating
that it would file a grievance alleging that Dick Cor-
poration had violated the subcontracting clause of its
agreement with the Operating Engineers by allowing
this assignment of the work by subcontractor Harris.
Thereafter, Jerry Horn, senior project manager for Dick
Corporation, advised Harris Masonry, Inc. of this con-
tact by Operating Engineers Local 66. Horn indicated
that it was Dick Corporation’s intention to hold Harris
Masonry, Inc. responsible for any successful claim
against it by the Operating Engineers. Subsequently,
the Laborers learned of these actions by the Operating
Engineers and on October 19, 1990, Paul Quarantillo,
assistant business agent for Laborers, telephoned Lee
Harris and informed him that should the job of oper-
ating the forklift be reassigned to employees rep-
resented by the Operating Engineers, the Laborers
would take ‘‘the appropriate action, which would in-
clude picketing of the project site’’ to preserve the
work for its members. Thereafter, on October 22,
1990, Harris Masonry, Inc. filed the subject unfair
labor practice charge. The work has remained with em-
ployees represented by the Laborers.
B. Work in Dispute
The disputed work involves the operation of a
Pettibone or Lull forklift for the purpose of raising ma-
terials onto scaffolding in the course of the construc-
tion of a new medical office building at the Jefferson
Hospital site located in the South Hills area of Pitts-
burgh, Pennsylvania.
C. Contentions of the Parties
Harris Masonry, Inc. contends the disputed work
should be awarded to employees represented by the
Laborers on the basis, inter alia, of its collective-bar-
gaining agreement with the Laborers, its preference
and past practice, and economy and efficiency. The
Laborers asserts that it should be awarded the disputed
work on the basis of its collective-bargaining agree-
ment and area practice. Both Harris Masonry, Inc. and
the Laborers seek an award of the disputed work to
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The most recent collective-bargaining agreement removed a height restric-
tion contained in the former contract whereby Laborers’ jurisdiction applied
to forklifts only when used at a level not exceeding one floor.
employees represented by the Laborers on its jobsites
throughout western Pennsylvania.
As noted, the Operating Engineers did not appear at
the hearing or submit a statement of position regarding
the assignment of the disputed work.
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 be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have no agreed-upon method for the vol-
untary adjustment of the dispute.
As stated above, it is undisputed that about October
19, 1990, the Laborers’ assistant business agent
Quarantillo informed Harris Masonry, Inc. that if it re-
assigned the disputed work to employees represented
by the Operating Engineers, the Laborers would take
appropriate action including picketing the jobsite. We
find an object of the Laborers’ conduct was to force
Harris Masonry, Inc. to maintain the assignment of the
disputed work to employees it represents. The parties
stipulated at the hearing and we find that there is no
agreed-upon method for the voluntary adjustment of
the dispute.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed-upon method for 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 affirm-
ative 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 in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining
agreements
There is no evidence that either the Laborers or the
Operating Engineers has been certified as the exclusive
collective-bargaining representative of any of Harris
Masonry, Inc.’s employees. As stated above, however,
Harris Masonry, Inc. is signatory to a collective-bar-
gaining agreement with the Laborers. Article IV, sec-
tion 2, of the Laborers’ most recent contract with Har-
ris Masonry, Inc. provides that the Laborers’ jurisdic-
tion covers, among other things, tending masons. Such
tending includes supplying and conveying materials to
mechanics, ‘‘whether by bucket, hod, wheelbarrow,
buggy, or other motorized unit used for such purpose
including forklifts.’’2 Harris Masonry, Inc.’s agreement
with Laborers also includes a broad claim for work in
article II, section 1(b), that provides: ‘‘There shall be
no restriction of the use of any machinery or tools
when furnished by the Employer.’’
As noted, the Operating Engineers did not partici-
pate in the hearing and therefore there is no evidence
regarding whether its collective-bargaining agreement
(albeit not binding on Harris Masonry) contains any
claim for this work. Accordingly, we find this factor
favors an award to employees represented by the La-
borers.
2. Employer preference and past practice
The record establishes that throughout the years Har-
ris Masonry, Inc. has assigned the disputed work to
employees represented by both Unions. However, since
mid-1988, Harris Masonry, Inc. has assigned the dis-
puted work exclusively to the employees represented
by the Laborers and it indicates that this is its present
preference. Accordingly, these factors favor an award
of the disputed work to employees represented by the
Laborers.
3. Area practice
Testimony presented at the hearing shows that the
disputed work is identical to that traditionally assigned
by other contractors in the area to employees rep-
resented by the Laborers. Harris, who is president of
the Mason Contractors Association of Western Penn-
sylvania, an organization having approximately eight
members, testified that all but one of the members ex-
clusively assign the work in question to employees
represented by the Laborers. Accordingly, this factor
favors an award of the disputed work to employees
represented by the Laborers.
4. Economy and efficiency of operation
Harris testified that he assigned the disputed forklift
work to employees represented by the Laborers in part
because a forklift does not need to be operated every
day, 8 hours a day. During times when the forklift is
not in operation, the employee represented by the La-
borers who is assigned to the operation of the forklift
can perform a variety of other productive tasks while
an employee represented by the Operating Engineers
cannot. Harris testified that prior to 1988, before Harris
Masonry, Inc. began exclusively assigning the disputed
work to employees represented by the Laborers, Harris
Masonry, Inc. did not use a forklift frequently because
315LABORERS (HARRIS MASONRY)
3 Laborers Local 373 (Friday Masonry), 288 NLRB 1220 (1988); Laborers
Local 1086 (Dentinger, Inc.), 282 NLRB 633 (1987).
it was inefficient to do so using an employee rep-
resented by Operating Engineers. Therefore, the Com-
pany performed the work now performed by the
Pettibone or Lull forklift using either walk-behind
forklifts or manually, far less productive and efficient
methods. Further, Harris testified that the Operating
Engineers contracts have a provision guaranteeing a
40-hour workweek, a clause not included in the Labor-
ers’ contract.
Because the Operating Engineers presented no evi-
dence showing that it would be as efficient or eco-
nomical to utilize employees represented by it to per-
form the disputed work, we find that this factor favors
awarding the disputed work to employees represented
by Laborers.
Conclusions
After considering the above relevant factors, we
conclude that employees represented by the Laborers’
District Council of Western Pennsylvania a/w Labor-
ers’ International Union of North America, AFL–CIO,
are entitled to perform the work in dispute. We reach
this conclusion relying on the factors of the collective-
bargaining agreements, the Company’s preference and
past practice, area practice, and economy and effi-
ciency of operations. In making this determination, we
are awarding the work to employees represented by the
Laborers, not to that Union or its members.
Harris Masonry, Inc. contends that the Board should
issue a broad award to employees the Laborers rep-
resents on Harris’ jobsites throughout western Pennsyl-
vania. We conclude that a broad order is not war-
ranted. The Operating Engineers did not engage in
picketing or threats of picketing; rather, it was the La-
borers that threatened to picket this particular jobsite to
maintain assignment of the disputed work to employ-
ees it represents. In these circumstances, there is no
basis for extending the determination beyond the par-
ticular controversy that gave rise to this proceeding.3
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing determination of dispute.
Employees of Harris Masonry, Inc. represented by
Laborers’ District Council of Western Pennsylvania
a/w Laborers’ International Union of North America,
AFL–CIO, are entitled to perform the Pettibone or Lull
forklift work at the Jefferson Hospital site located in
the South Hills area of Pittsburgh, Pennsylvania.