Laborers Local 1086 (Dentinger, Inc.)

National Labor Relations Board - Board Decisions

Jan 6, 1987

282 N.L.R.B. 633 (N.L.R.B. 1987)

LABORERS LOCAL 1086 (DENTINGER, INC.)
Laborers International Union, Local 1086,. AFL-
CIO and Bill Dentinger, Inc., Hutter 'Construc-
tion Company , and International Union of Oper-
ating Engineers, Local 139, AFL-CIO. Cases
30-C]D-116 and 30-CD-117
6 January 1987
DECISION AND DETERMINATION OF
DISPUTE
By MEMBERS JOHANSEN, BABSON, AND
STEPHENS
The charges in this 10(k) proceeding were filed
23 September 1985 and 7 November 1985 by the
Employers, alleging that the Respondent (Laborers
Local 1086), violated Section 8(b)(4)(D) of the Na-
tional Labor Relations ' Act by engaging in pro-
scribed activity with an object of forcing the Em-
ployers to assign certain work to employees it rep-
resents rather' than, to employees represented by
Operating Engineers Local 139. The cases were
consolidated and a hearing was held 18 December
1985 before Hearing Officer Kathleen L. " Rup-
precht.
The National Labor Relations Board has delegat-
ed 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 find-
ings.
I. JURISDICTION
Bill Dentinger, Inc., a Wisconsin corporation, is
a construction firm engaged in masonry subcon-
tracting with its principal office in Brookfield, Wis-
consin . It annually purchased and received goods
and materials valued in excess of $50,000 directly
from suppliers located outside the State of Wiscon-
sin.
Hutter Construction Company, a Wisconsin cor-
poration, is engaged in,construction as a general
contractor with its principal offices in Fond du
Lac, Wisconsin, where it annually purchased and
received goods and materials valued at more than
$50,000 directly from suppliers located outside the
Slate of Wisconsin.
The parties stipulate, and we find, that the Em-
ployers are engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that La-
borers, Local 1086 and' Engineers Local 139 are
labor organizations within the meaning of Section
2(5) of the Act.
633
II. THE DISPUTE
A. Background and Facts of Dispute
The State of Wisconsin awarded the Oshkosh,
Wisconsin, Medium Security Prison project to
Hutter Construction Company in July 1984. Bill
Dentinger, Inc., Hutter's masonry subcontractor,
assigned the mason-tending forklift work to em-
ployees represented by the Laborers.
David Waite, a business representative for the
Engineers, F. William Harvat from Hutter, W. C.
Dentinger, Jr., and several representatives of the
Laborers discussed ' the assignment on 31 August
1984. Waite indicated that Dentinger's assignment
to the Laborers was unacceptable to the Engineers,
and suggested that Hutter could have its own em-
ployees perform mason-tending forklift work di-
rectly, or that Dentinger could become a party to
the collective-bargaining agreement between the
Engineers and the Associated General Contractors,
Wisconsin Chapter (the Area II contract). Harvat
stated that Hutter had no desire to perform the
work directly. Dentinger agreed at the meeting to
sign the Area II Agreement. However, the Engi-
neers subsequently refused to provide Dentinger
with the Area II contract because Dentinger was
unwilling to assign the mason-tending forklift work
to employees represented by the Engineers.
On '6 September 1984 the Engineers filed a griev-
ance against Hutter as party to the Area II con-
tract, alleging that Hutter was in violation of the
contract's subcontracting clause. On 29 July 1985
an arbitrator concluded that mason-tending' forklift
work was covered by the Area II contract and that
the performance of that work by employees of a
subcontractor not a party to the agreement violated
the subcontracting clause. The arbitrator fashioned
an "in-lieu-of work" remedy. A petition to vacate
or modify the arbitrator's award filed 28 October
1985 by Huffer in the Federal 'District Court for
the Eastern District of Wisconsin was still pending
at the time of the instant hearing.
In the meantime, in April 1985 and again in Sep-
tember 1985, the Laborers notified Dentinger by
letter that it would take legal and economic action
against the subcontractor in furtherance of its claim
for the mason-tending forklift work it had been as-
signed.
Faced with the Engineers' contractual demands,
in early November Hutter asked Dentinger to
change the mason-tending forklift assignment from
the laborers to the engineers. ' On 5 November 1985
Dentinger wrote to the Laborers and notified it
that an assignment change was going to be made
and that a laborer would be laid off because of the
change. About the same time Dentinger contacted
282 NLRB No. 90
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Engineers and inquired about an engineer being
dispatched to man the forklift. He also again re-
quested an Area II Engineers' contract be sent to
him. Several days later Dentinger was notified that
neither would be sent because Dentinger would not
change its mason-tending forklift assignment to the
engineers.
On 7 November 1985 members of the Laborers
picketed the main entrance to the prison project.
There was a 1-day work stoppage.
B. Work in Dispute
The disputed work involves the mason-tending
forklift work that was assigned to employees repre-
sented by the Laborers by Bill Dentinger , Inc., the
masonry subcontractor for Hutter on the Medium
Security Prison project in Oshkosh, Wisconsin.
C. Contentions of the Parties
Hutter contends that the mason-tending forklift
work should be awarded to employees represented
by the Laborers based on employer preference,
economy and efficiency, collective-bargaining
agreements, and an arbitration award.
Dentinger contends that the work in dispute
should be awarded to employees represented by
the Laborers.
The Laborers contends that the employees it
represents have a contractually based claim for the
work in dispute ' and are preferred by Dentinger,
and that these factors, combined with industry and
area practice, operational efficiency, and skill and
training, require an award of the work to employ-
ees it represents. Both Hutter and the Laborers
seek an award of the mason-tending forklift work
to employees represented by the Laborers on job-
sites throughout the State.
The Engineers ' contends that it successfully proc-
essed a grievance against Hutter for breach of the
Area II contract's subcontracting clause ; that an ar-
bitrator issued an , opinion and award favorable, to
the Engineers; that Hutter, Dentinger, the Laborers
District Council, and the Laborers Local 1086,
conspired to create a job incident sufficient to sup-
port an unfair labor practice that would lead to this
10(k) hearing in which the Laborers would prevail;
that the Engineers has never demanded that Den-
tinger violate its contract with the Laborers, nor
that Dentinger change its forklift assignment to em-
ployees represented by the Engineers ; that the En-
gineers has only demanded that Hutter comply
with the opinion and award of the arbitrator; that
the processing and administration of these charges
are a sham and fraud on the Board ; and that the
Laborers has maliciously , with the knowledge and
consent of Hutter and Dentinger, created an
8(b)(4)(D) violation in order to prevail in the 10(k)
hearing, thereby relieving Hutter from its duty to
comply with the arbitrator 's opinion and award. Fi-
nally, the Engineers moved to dismiss ' the charge
as untimely pursuant to Section 10(b) of the Act,
because the conduct occurred in August 1984 and
the charges were filed about 7 November 1985.
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 on a
method for the voluntary adjustment of the dis-
pute.
The charges herein allege violations of Section
8(b)(4)(D) of the Act. In a letter dated 19 April
1985 the Laborers notified Dentinger , that if there
were , any change in the forklift operator , "Laborers
Local 1086 will take any recourse it takes to main-
tain our work." On 16 September 1985 the Labor-
ers notified Dentinger that:
These rights that the Laborers Union will ex-
ercise, may 'include litigation against your
company for violation of the Collective Bar-
gaining Agreement, picketing to inform the
other crafts and the public of the jurisdictional
claim of the Laborers Union and a withdrawal
of laborers from the job site in order to en-
force the jurisdictional claim of the Laborers
Union.
On 7 November 1985 employees represented by
the Laborers picketed the main entrance to the
prison project to protest the assignment of the
work in dispute to the Engineers . A 1-day work
stoppage resulted, which involved approximately
16 contractors and the withholding of services by
approximately 66 employees.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred, which is
not barred by Section 10(b)' and that there, exists
no agreed method of voluntary adjustment of the
dispute within the meaning of Section 10(k) of the
Act. Accordingly, we find that the dispute is prop-
erly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of the disputed work after consid-
ering various factors. NLRB v. Electrical Workers
1 The Engineers' motion to dismiss is denied. The charges clearly were
filed within 6 months of the alleged unlawful conduct engaged in by the
Laborers.
LABORERS LOCAL 1086 (DENTINGER, INC.) 635
IBEW Local 1212 (Columbia Broadcasting), 364
U.S. 573 (1961 ). The Board has held that its deter-
mination in a jurisdictional dispute is an act of
judgment based on common sense and experience,
reached by balancing the factors involved in a par-
ticular case . Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Collective-bargaining agreements
Dentinger is a member of the Mason Contrac-
tor's Association of America (MCAA). An agree-
ment between MCAA and the Laborers Interna-
tional requires mason contractors to assign the
tending of masons in general to members of the La-
borers . On 31 August 1984 Dentinger signed a
short form agreement with the Laborers . Section
5.3 contains the classification "Forklift Operator"
and an accompanying wage rate.
Hutter is a party to the Fox Valley Contractors
Association Agreement with various Laborers'
locals, which contains jurisdictional claims to
mason-tending forklift work . Also , Hutter is a
party to the Engineers Area II agreement, which
sets forth the claim for the operation of "forklifts."
An arbitrator found Hutter violated this contract
by subcontracting the work in dispute to Dentinger
because the latter did not have an agreement with
the Engineers.
Evidence concerning this factor indicates that
the forklift operation is within the work jurisdic-
tion of both Unions . We therefore fmd that this
factor does not favor an award to employees repre-
sented by either Union.
2. Company preference and past practice
Since 1975 Dentinger has assigned mason-tend-
ing forklift work to the Laborers on over 200 jobs
and has expressed a preference to assign this work
to the Laborers whenever possible . Although on
two occasions Dentinger has assigned mason-tend-
ing forklift work to members of the Engineers,
record testimony shows that the Engineers pres-
sured the general contractor to have Dentinger
change the assignment or lose the subcontract.
Accordingly , we fmd that Dentinger 's preference
and past practice favor the award to employees
represented by the Laborers.
3. Area practice
Hutter indicates that if mason -tending forklift
work were performed by individuals Hutter em-
ployed directly, Hutter's preference would be, as
its practice in most cases has been , to have the la-
borers perform mason-tending forklift work. The
practice of Hutter and Dentinger is consistent with
the assignment of contractors doing masonry con-
struction throughout Wisconsin. Fifty to 60 percent
of general contractors performing masonry work in
Milwaukee and its environs use laborers to run
their forklifts . In the remaining counties, 90 percent
of masonry subcontractors assign their forklift
work to laborers . When an engineer has performed
the disputed work , he has done so because he was
already on the job and was not at the time needed
to run other equipment . Accordingly , we fmd that
area practice favors an award to employees repre-
sented by the Laborers.
4. Relative skills
No special skills are required of the employees
who operate the mason-tending forklift and mem-
bers of both the Laborers and the Engineers are
qualified to perform the work in dispute . Accord-
ingly, we fmd this factor does not favor an award
to employees represented by either Union.
5. Economy and efficiency of operations
The typical work crew includes five masons and
three laborers . When the forklift is not in oper-
ation , mason-tenders must also mix mortar, move
scaffolding, and perform utility duties and cleanup,
all tasks that are outside the Engineers ' jurisdiction.
The addition of an Engineers -represented employee
would expand the crew to five masons, three labor-
ers, and one engineer, thus increasing costs without
adding any productivity . Accordingly , this factor
favors awarding the work to employees represent-
ed by the Laborers.
6. Arbitration awards
Hutter and the Engineers in urging awarding the
work to members of Laborers and Engineers, re-
spectively, each rely on different arbitration deci-
sions to support their contentions regarding the de-
termination of this dispute. We note, however, that
not all the parties to the instant proceeding partici-
pated in either arbitration proceeding or agreed to
be bound by the results. Accordingly, the arbitra-
tors' awards are not binding on the Board.2
Conclusions
After considering all the relevant factors, we
conclude that employees represented by the Labor-
ers' International Union, Local 1086 , AFL-CIO,
are entitled to perform the work in dispute. We
reach this conclusion relying on the preferences
and past practices of the Employers and area prac-
2 Longshoremen ILWU (Brady-Hamilton Stevedore Co.), 244 NLRB 275,
276 Si. 6 (1979).
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices and economy and efficiency of operation. In
making this determination , we are awarding the
work to , employees represented by the Laborers'
International Union, Local 1086, AFL-CIO, not to
that Union or its members.
Hutter contends , and the Laborers concurs, that
the Board should issue a broad award to employees
the Laborers represent on jobsites throughout the
State. We conclude that a broad order is not war-
ranted. The Engineers did not engage in threats of
picketing or picketing ; rather, it was the Laborers
who threatened to picket and picketed to maintain
assignment of the disputed work to employees it
represents. In these circumstances there is no basis
for extending the determination beyond the par-
ticular controversy that gave rise to the proceed-
ing.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Bill Dentinger , Inc., represented
by Laborers ' International Union, Local 1086,
AFL-CIO, are entitled to perform the mason-tend-
ing forklift work at the Medium Security Prison
project in Oshkosh, Wisconsin.