Laborers Local 317 (Mcwad Inc)

National Labor Relations Board - Board Decisions

Feb 20, 1985

274 N.L.R.B. 145 (N.L.R.B. 1985)

LABORERS LOCAL' 317 (MCWAD INC) '
Laborers ' International Union of North America,
AFL-CIO, General , Laborers ' Union Local No.
317 and McWad Incorporated and Local No.
139 of the International Union of Operating En-
gineers. Case 18-CD-286-1
20 February 1985
'DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The charge in this Section 10(k) proceeding was
filed 10 September 1984 by the Employer, alleging
that the Respondent, Laborers' International Union "
of `No'rth America, AFL-CIO, General Laborers'
Union Local No. 317 (Laborers), violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees it represents rather than to employees rep-
resented by Local No. 139 of the International
Union of Operating Engineers (Operating Engi-
neers). The hearing was held 3 October 1984
before Hearing Officer William Y. Kim.
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.
1. JURISDICTION
The Employer, a Wisconsin corporation, is en-
gaged in the business of masonry contracting with
its principal place of business in Wausau, Wiscon-
sin. During the past calendar year, a representative
period, the Employer purchased and received
goods and services valued in excess of $50,000
from points located directly outside the State of
Wisconsin. The parties stipulate, and we find, that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Laborers and the Operating Engineers are
labor organizations within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The record discloses that the Employer, the sub-
contractor herein, is bound to a collective-bargain-
ing agreement between the Chippewa Valley Con-
tractors Association of Eau Claire and Area and
General Laborers' Union Local No. 317.1 An ad-
I The contract which was introduced into evidence expired on April
30, 1984 However, testimony by Victor Wadzinski, the Employer's
president , established that he failed to give timely notice of a desire to
145
dendum to that agreement executed by the Em-
ployer on 21 August 1981 guarantees the work of
operating forklifts, highlifts, and bobcats to general
laborers union member's.
Oscar J. Boldt Construction, the general contrac-
tor herein, is a member -of the Wisconsin Chapter,
Associated General Contractors of America, Inc.,
which is-a party to a master agreement, known as
the Area II Agreement, with the Operating Engi-
neers. Boldt is also bound to a collective-bargain-
ing agreement between the Chippewa Valley Con-
tractors Association of Eau Claire and Area and
the General Laborers' Union Local No. 317.
On 13 October 1983, the Employer and Boldt
entered into a subcontracting agreement in which
the Employer agreed to perform the masonry work
at the Memorial Student Center, University of Wis-
consin-Stout in Menomonie, Wisconsin. That docu-
ment contains a - provision requiring the Employer
to "supply only labor and/or- materials which will'
not cause labor disputes in the overall performance
of contractor's work" and requires the Employer
to take immediate steps to resolve any disputes that
arise.
The Employer began performing the work in
May 19842 and initially assigned to employees rep-
resented by the Laborers the disputed work of op-
erating forklifts. The evidence indicates that in Oc-
tober 1983, prior to or simultaneous with the begin-
ning of work on the Stout project, an initial meet-
ing was held between Boldt and the Operating En-
gineers. Operating Engineers Vice President Dale
Stubbe informed Boldt that there would be a prob-
lem with the Employer's assignment of the forklift
operation to employees represented by the Labor-
ers. Boldt's representatives, Dennis Moyer and
Steve Chavlovich, met with the Employer on 23
July to discuss the problem and informed Victor
Wadzinski, the Employer's president, that in the
event the Operating Engineers filed a grievance,
the Employer would be responsible for resolving
the dispute. On 26 July the Operating Engineers
filed a grievance with Boldt, alleging that Boldt
had violated the Area II Agreement by entering
into a subcontracting arrangement with the Em-
ployer.
On 31 July Chavlovich sent a letter to Wad-
zinski, advising him of the filing of the grievance
and reminding him of his obligation to resolve the
dispute quickly. On 29 August Moyer sent a
second letter to Wadzinski, suggesting alternative
methods of resolving the dispute and stating that
change or cancel the agreement and, as a result, by its terms the contract
was automatically extended for another year The Employer was there-
fore bound to its terms for another year
2 All dates hereafter are 1984 unless otherwise noted
274 NLRB No. 28
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer would be held responsible for any
monetary penalties or assessments levied against
Boldt as a result of the dispute. On 6 August Wad-
zinksi discussed the situation with Laborers Busi-
ness Manager James Griglak and by letter to the
Employer dated 7 August Griglak threatened that
if the disputed work were assigned to employees
represented by the Operating Engineers, then the
Laborers would take "such action as necessary" to
enforce its contract with the Employer, including
picketing and the removal of laborers from the job.
B. Work in Dispute
The work in dispute is the operation of the fork-
lift used in connection with the Employer's mason-
ry work at the Memorial Student Center, Universi-
ty of Wisconsin-Stout, Menomonie, Wisconsin job-
site,
C. Contentions of the Parties3
The Employer contends that the disputed work
should be awarded to employees represented by
the Laborers based on its collective -bargaining
agreement with the Laborers , its past practice and
preference , skills, economy and efficiency of oper-
ation , and area practice.
The Operating Engineers contends that it has no
jurisdictional dispute with the Laborers concerning
the Employer , but rather a dispute with Boldt con-
cerning a contract violation . Operating Engineers
Vice President Dale Stubbe testified, however, that
should the operation of the forklift be assigned to
an employee represented by the Operating Engi-
neers their grievance would be withdrawn. Fur-
ther, it is clear from the record that the Operating
Engineers claimed the disputed work . Under these
circumstances , we find that there is a jurisdictional
dispute between the Operating Engineers and the
Laborers over the Employer 's assignment of the
disputed work.
The Laborers contends that the work should be
assigned to employees whom it represents based on
the collective-bargaining agreements and area prac-
tice.
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.
9 Neither the Operating Engineers nor Laborers filed a posthearing
brief in this matter Their respective contentions are drawn from state-
ments contained within the record
It is undisputed that, in a letter to the Employer
on 7 August, the Laborers threatened that if the
disputed work were assigned to employees repre-
sented by the Operating Engineers, the Laborers
would take action to enforce its contract with the
Employer, including picketing and the removal of
laborers from the job.
Under these circumstances , we find reasonable
cause to believe that a violation of Section
8(b)(4)(D) has occurred. No party contends that
there is an agreed 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 af-
firmative 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 bal-
ancing the factors involved in a particular 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
Boldt and the Operating Engineers are bound to
the Area II Agreement, which contains a provision
indicating that the operation of forklifts on con-
struction jobsites is exclusively the craft work of
the Operating Engineers, and a provision forbid-
ding the subcontracting of work to employers who
are not signatories to an agreement with the Oper-
ating Engineers.4 Additionally, Boldt is bound to a
4 The text of these provisions reads , in pertinent part
Article VII Section 7 8 ELEVATOR AND FORKLIFT AS-
SIGNMENT The operation of elevator or forklift trucks on con-
struction jobsites (excluding warehouse and storage yard as per
Teamster Operating Engineers International Agreement) is exclusive-
ly the craft work of the Operating Engineers and assignment of said
operation shall be made to an Operating Engineer, dispatched and
covered by the terms and conditions of this agreement On jobs or
projects where the use of an elevator or forklift truck is not of suffi-
cient quantity to warrant the employment of an operator , the Con-
tractor or Contractor Representative will contact the Union District
Business Representative of the Operating Engineers and if mutually
agreed , then and only then , may the Contractor use another employ-
ee to perform said work
Article IV Section 4 1 UNION SUBCONTRACTOR The Con-
tractor agrees that, when subletting or contracting out of work cov-
ered by this Agreement which is to be performed within the geo-
graphical coverage of this Agreement at the site of the construction,
alteration, painting, or repair of a highway, building, structure or
other work, he will sublet or contract out such work only to a sub-
contractor who has signed , or is otherwise bound by, a written labor
agreement entered into with the Union
LABORERS LOCAL 317 (MCWAD INC)
collective-bargaining agreement between the Chip-
pewa Valley Contractors Association of Eau Claire
and Area and General Laborers' Union Local No.
317 which also covers the disputed work and for-
bids subcontracting to employers who are not sig-
natories to an agreement with that organization.5
The subcontracting agreement between Boldt and
the Employer requires only that the Employer
shall supply labor and/or materials which will not
cause labor disputes in the overall performance of
the contractors' work.
Thus, since Boldt is subject to conflicting agree-
ments which require that the same work assign-
ment be made to employees represented by both
Unions and the subcontracting agreement does not
clarify this ambiguity, we find the subcontracting
agreement to be inconclusive for purposes of re-
solving this dispute.
The master collective-bargaining agreement to
which the Employer and the Laborers are bound,
however, encompasses work involving the "un-
loading, mixing, handling and conveying of all ma-
terials . . . by any mode or method," as well as a
specific contract addendum to Article 26 which
states that "the operation of forklifts, highlifts and
bobcats, no matter what height they are used, be
assigned to general laborers union members." We
rely on the broad language of these provisions to
find that the factor of the collective- bargaining
agreements favors an award of the work in dispute
to employees represented by the Laborers.
2. Company preference and past practice
The record reflects that for at least the past 10 to
12 years the Employer has utilized only employees
represented by the Laborers to perform the disput-
ed work with two exceptions.6 In view of this es-
The text of these provisions reads , in pertinent part
Article XVI Part I TENDERS Tending masons , plasterers, car-
penters and other building and construction crafts Tending shall
consist of preparation of materials and the handling and conveying
of materials to be used by mechanics of other crafts, whether such
preparation is by hand or any other process After the material has
been prepared, tending shall include the supplying and conveying of
said material and other materials to such mechanic , whether by
bucket, hod, wheelbarrow, buggy, or other motorized unit used for
such purpose , including fork lifts when used at levels not in excess of
nine feet Unloading , handling and distributing of all materials, fix-
tures , furnishings and appliances from point of delivery to stockpiles
and from stockpiles to approximate point of installation
Article XIX Section 1-is agreed that any work sublet and to be
done at the site of the construction alteration , painting or repair of a
building , structure , or other work and when a portion of said work
to be sublet is under the jurisdiction of this Agreement, the work
shall be sublet to a Subcontractor signatory to this agreement
6 Wadzinski testified that the Employer had not had a contract with
the Operating Engineers for over 10 years and, on the 45 subcontracting
jobs performed over the past 4 years by the Employer , the Employer had
used laborers except on the Market & Johnson , Inc job in 1981 and the
Oscar J Boldt parking ramp job in 1981 These two jobs were the sub-
jects of two prior Board decisions involving the Employer Operating En-
147
tablished practice of assigning the work of operat-
ing forklifts in connection with masonry work to
employees represented by the Laborers, we find
the factor of employer practice favors an assign-
ment of the disputed work to employees represent-
ed by the Laborers.
Wadzinski testified that it is the Employer's pref-
erence that the disputed work be performed by la-
borers. Consequently, we also find that the factor
of employer preference favors an award to employ-
ees represented by the Laborers.
3. Area practice
Wadzinski testified that most masonry contrac-
tors working around the northern half of Wiscon-
sin used laborers to run forklifts. Al Milak, the La-
borers' International representative, testified that
most union mason contractors utilize laborers to
operate forklifts Dale Stubbe, the Operating Engi-
neers' vice president, testified that contractors in
the Wisconsin area used operating engineers to op-
erate the forklift. Under these circumstances we
find that the factor of area practice is inconclusive
and does not favor an award of the disputed work
to employees represented by either union.
4. Relative skills
Wadzinski testified that employees represented
by the Laborers and the Operating Engineers were
equally qualified to operate the forklift. No evi-
dence to the contrary was presented. We therefore
find that this factor is inconclusive in determining
the award of the disputed work.
5. Economy and efficiency of operation
Wadzinski testified without contradiction that
when not engaged in operating a forklift, a laborer
performs other tasks in connection with masonry
work, including mixing mortar and supplying the
mason with brick and block, mortar, and various
other materials. In addition, should something fall
from the forklift during transport, a laborer was al-
lowed to get off the machine and pick it up. How-
ever operating engineers were restricted in the
number of times they could dismount from the
forklift. Under these circumstances, we find that
the factor of economy and efficiency of operation
favors an award of the disputed work to employees
represented by the Laborers.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by the Labor-
gineers Local 139 (Mc Wad I), 262 NLRB 1300 (1982 ), Laborers Local 1359
(Mc Wad II), 264 NLRB 1397 (1982)
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers are entitled to perform the work in dispute. We
reach this conclusion relying on the factors of the
collective-bargaining agreements , employer prefer-
ence and practice, economy and, efficiency. In
making this determination, we are awarding the
work to employees represented by the Laborers,
not to that Union or its members.
Scope of the Award
The Employer contends that, because this dis-
pute has arisen between the parties on three occa-
sions, the Board should issue abroad award to em-
ployees represented by the Laborers on all 'jobs
performed by the Employer within the geographic
jurisdiction of the Operating Engineers. Contrary
to the Employer's contentions, we conclude that a
broad award is not warranted.
Although the Operating Engineers engaged in
threats of picketing in McWad I, no such threats
occurred in McWad II 'or in this case. Rather, the
Operating Engineers filed a grievance concerning
the disputed work, 'and it was the Laborers that
threatened to picket should the work be reassigned
to employees represented by the Operating Engi-
neers.
In these circumstances, we decline to issue the
broad award and we limit the present determina-
tion to the particular controversy which gave rise
to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of McWad, Inc. represented by La-
borers' International Union of North America,
AFL-CIO; General Laborers' Union Local No.
317 are entitled to perform the work of operating
forklifts at the Memorial Student Center, Universi-
ty of Wisconsin-Stout, Menomonie, Wisconsin job-
site.