Operating Engineering Local Nos. 77, et al.

National Labor Relations Board - Board Decisions

Sep 11, 1980

252 N.L.R.B. 106 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
Nos. 77, 77-A, 77-RA, 77-B, 77-C, 77-D,
AFL-CIO and Bricklaying, Inc. and Laborers'
International Union of North America, Local
Union 74, AFL-CIO. Case 5-CD-261
September 11, 1980
DECISION AND DETERMININATION
OF DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Bricklaying, Inc., herein
called the Employer, alleging that International
Union of Operating Engineers, Local Nos. 77, 77-
A, 77-RA, 77-B, 77-C, 77-D, AFL-CIO, herein
called the Respondent or the Engineers, had violat-
ed Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forc-
ing or requiring the Employer to assign certain
work to its members rather than to employees rep-
resented by Laborers' International Union of North
America, Local Union 74, AFL-CIO, herein called
the Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer Robert L. Clayton on June 26 and
30 and July 1, 1980. All parties appeared and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evi-
dence bearing on the issues.
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 af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Delaware corporation with its principal
place of business in Brentwood, Maryland, is en-
gaged in the business of general masonry construc-
tion. During the past year, the Employer pur-
chased finished products from outside the State
having a value of $50,000. The parties also stipulat-
ed, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the En-
gineers and the Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
I The name appears as amended at the hearing.
252 NLRB No. 16
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is engaged in the masonry con-
struction business in the Washington, D.C., area.
The Employer has a subcontract with Baltimore
Contractors, Inc., to perform certain masonry work
at the Dirksen Senate Office Building in Washing-
ton, D.C. The Employer is signatory to a collec-
tive-bargaining agreement between Construction
Contractors Council-AGC Labor Division, Inc.,
herein called CCC, and the Laborers. 2 In addition,
through its membership in the Mason Contractors
Association of America and the Mason Contractors
Association of the District of Columbia, the Em-
ployer is contractually obligated to the collective-
bargaining agreement between these employer or-
ganizations and the Laborers' International Union.
There is also in effect a collective-bargaining
agreement between the Engineers and CCC, which
the Respondent contends, but the Employer denies,
is binding on the Employer. Both CCC contracts
contain provisions that require signatory employers
to assign the disputed work (operation of forklifts)
to the respective Unions. The Engineers-CCC con-
tract contains a provision which provides that any
jurisdictional dispute shall be submitted to the Im-
partial Jurisdictional Disputes Board, herein called
the IJDB, for settlement in accordance with the
plan adopted by the Building and Construction
Trades Department, AFL-CIO, herein called the
BCTD. The Employer's contracts with the Labor-
ers do not contain such a provision.
Pursuant to its contract with the Laborers and
consistent with its past practice, the Employer as-
signed the disputed work to employee members of
the Laborers. As of May 1980, the Employer em-
ployed approximately 21 employees, of whom 13
were members of the Laborers, 7 were members of
Bricklayers Local Union No. 6, and 1 was a
member of the Engineers, and operated a hoist.
Employee members of the Engineers and the La-
borers also were employed by other employers on
the jobsite, including Dan LaPore & Sons, subcon-
tractor, and J. W. Bateson Co., Inc., contractor,
both of whom are signatories to the Engineers-
CCC contract.
On May 13, 1980,3 the Engineers submitted
claims to the IJDB concerning the operation of
forklifts for LaPore and Bateson by employee
members of the Laborers. On June 2, the IJDB
awarded this work to employee members of the
Engineers.
2 The Employer is not a member of CCC.
3 All dates are 1980 unless otherwise specified
106
OPERATING ENGINEERS, LOCAL NOS. 77, ET AL.
On the morning of June 5, members of the Engi-
neers employed by various employers on the job-
site engaged in a work stoppage for 1-1/2 to 2-1/2
hours to protest the Employer's assignment of the
forklift work to members of the Laborers. 4 The
Engineers members subsequently returned to work
and there has been no further work stoppage at the
site.
On June 23, the Engineers submitted a claim to
the IJDB concerning the Employer's assignment of
the disputed work to employee members of the La-
borers and on July 11, the IJDB awarded the work
to employee members of the Engineers.5
B. The Work in Dispute
The work in dispute involves the operation of a
forklift which transports and hoists masonry mate-
rials in servicing masons employed by the Employ-
er at the Dirksen Senate Office Building construc-
tion site in Washington, D.C.
C. The Contentions of the Parties
The Employer contends that the disputed work
should be assigned to its employees represented by
the Laborers, relying on the collective-bargaining
history, employer and area practice, relative skills,
and economy and efficiency of operation. The Em-
ployer further contends that it does not have a col-
lective-bargaining agreement with the Engineers
and that there is no mutually agreed-upon method
for voluntary adjustment of the dispute. The La-
borers agrees that the Employer's assignment of
the disputed work is proper and in accord with its
collective-bargaining agreements and Employer
and area practice.
The Respondent takes the position that there is
an agreed-upon method for voluntary adjustment
of the dispute based upon the Engineers-CCC con-
tract and the affiliation of both labor organizations
with the BCTD. According to the Respondent, the
Employer has agreed to be bound by the Engi-
' Although the Engineers members carried no picket signs, distributed
no leaflets, and did not expressly state why they were not working, there
is no dispute concerning the purpose of the work stoppage and the
record clearly establishes that it was to protest the Employer's assign-
ment of the disputed work to the members of the Laborers. Thus, the
evidence shows that on or about June 4, 2 days after the IJDB had
awarded the LaPore and Bateson forklift work to members of the Engi-
neers, representatives of the Engineers indicated to Baltimore Contractors
that the Engineers was claiming the forklift work performed by the Em-
ployer. In addition, on this same date and apparently in response to con-
versations between Engineers' and Baltimore Contractors' representa-
tives, Baltimore Contractors contacted the Employer and requested that
it not use employee members of the Laborers to operate its forklifts. Fi-
nally, the Respondent does not contend that there is not reasonable cause
to believe that Sec. 8(b)(4XD) has been violated.
5 The IJDB decision issued after the hearing in this case closed. How-
ever, at the hearing, the Respondent requested that the decision become a
part of the record, and it attached a copy to its brief. No party objected
to receipt of this decision.
neers-CCC contract. Alternatively, the Respondent
contends that the work should be assigned to it
based on collective-bargaining history, industry and
area practice, awards of the IJDB, interunion
agreements, and economy and efficiency of oper-
ation.
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 (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and (2) that the parties have not agreed
upon a method for the voluntary adjustment of the
dispute.
1. It is clear that the Respondent engaged in a
work stoppage at the jobsite and that such work
stoppage was to protest the Employer's assignment
of the disputed work to employee members of the
Laborers. 6 Accordingly, we find that reasonable
cause exists to believe that the Respondent violated
Section 8(b)(4)(D) of the Act.
2. Before the Board will defer to an agreed-upon
method for settlement of a dispute, the agreement
must bind all the parties, including the Employer.7
Although both Unions are bound to the IJDB by
virtue of their membership in the BCTD, it is un-
disputed that neither the Employer's contracts with
the Laborers nor its subcontract with Baltimore
Contractors contains a clause obligating the Em-
ployer to submit jurisdictional disputes to the
IJDB. The Engineers-CCC contract does contain
such a clause and the Respondent contends that the
Employer is bound to this agreement. We do not
agree with the Respondent's contention.
According to the Respondent, the Employer
signed a memorandum agreement on October 2,
1961, pursuant to which it agreed to be bound to
the then current Engineers-CCC contract. It fur-
ther contends that that contract contained an auto-
matic renewal clause and that the Employer has
never given the contractually required notice of
termination. Thus, the Employer is bound to the
current contract, which is a successor to the 1961
agreement. The Respondent did not produce the
alleged memorandum agreement, claiming that its
pre-1975 files had been lost or destroyed, but bases
its claim on a file index card which indicates that
such an agreement exists. The Respondent further
contends that the Employer's conduct since at least
1976 in adhering to the terms of the Engineers-
CCC contract as to engineers it employs manifests
6 See fn 4, supra.
.¥L.R.B. Plastererr Local Union .%No 79, Operative Plailrers and
(ement .Masons' International .4s.tioan. .AFL-CIO (Tras Surat Tile &
ie·rrazzo Co.. et al). 404 S 116 (1971)
107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an intention to be bound to the terms of the con-
tract and that, under Board precedent, it should be
held to have adopted the contract.
The Employer denies ever signing any agree-
ment with the Respondent, and we are unable to
conclude that the Employer has agreed to be
bound to the entire Engineers-CCC contract.
Absent production of the alleged signed 1961
memorandum agreement and in light of the Em-
ployer's denial that it exists, there is insufficient
evidence to establish that the the Employer ever
became signatory to the 1961 Engineers-CCC
agreement.
We are also unable to conclude that the Employ-
er has adopted the entire contract by its conduct.
The evidence does show that at least since 1976 the
Employer has been paying Engineers members it
employs the contractual wage rate, has made all
trust fund payments to the Engineers various funds
as specified in the contract, and has checked off
the contractually mandated dues from the Engi-
neers employee members' salaries. However, the
evidence also shows that over at least the past 5
years, on several occasions, the Employer has re-
fused requests made by the Engineers representa-
tives that it sign the Engineers-CCC contract, stat-
ing it did not want to be bound to the contract in
any way. At the same time, the Employer has
asked the Engineers representative to sign a "short
form" agreement covering wages and fringe bene-
fits but excluding any clause obligating it to put an
Engineer member on the forklift. In addition, the
Employer has consistently negotiated out of any
agreement it has signed any clause obligating it to
submit jurisdictional disputes to the IJDB, the most
recent being its subcontract with Baltimore Con-
tractors.
It is true, as the Respondent contends, that when
an employer manifests through its conduct an in-
tention to be bound to the terms of a collective-
bargaining agreement it will be held to have adopt-
ed that agreement.8 Here, however, although the
Employer's conduct in following the terms of the
contract with respect to Engineers members it em-
ploys strongly suggests an intention to be bound to
its terms, it has consistently acted to negate that in-
tention at least with regard to the IJDB provision.
In addition, its consistent refusal to sign any agree-
ment containing an IJDB clause makes it unlikely
that it intended to be bound to the Engineers-CCC
contract, which does contain such a clause.
Accordingly, we find that the Employer has not
agreed to be bound by the provisions in the Engi-
neers-CCC contract providing for submission of ju-
risdictional disputes to the IJDB. On the basis of
a See, eg., Vin James Plastering Company, 226 NLRB 125 (1976).
the foregoing, we conclude that this dispute is
properly before the Board for determination pursu-
ant to Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors.
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
The Laborers and the Engineers contracts with
the CCC contain provisions requiring signatory
employers to assign the disputed work to their
Union. Although we have found that the Employer
has not agreed to be bound by the provision of the
contract providing for submission to IJDB on the
basis of its consistent disclaimers as to that provi-
sion, it is not so clear that it has not agreed to be
bound to the rest of the contract. Therefore, as-
suming without deciding, in the absence of clarify-
ing record evidence, that it may be bound to the
assignment-of-work provision of the contract, we
find that the contractual assignment factor favors
neither Union. Accordingly, this factor does not
favor an award to either Union.
2. Employer past practice
The Employer has performed numerous masonry
subcontract jobs in the Washington, D.C., area. Its
uniform practice has been to assign the disputed
work to employees represented by the Laborers.
Employer practice favors an award to employees
represented by the Laborers.
3. Economy and efficiency of operation
The record indicates that the forklift is never op-
erated for more than 3 or 4 hours each day. When
the forklift is not in operation, the Laborers assist
the masons in the performance of their work. Engi-
neers, on the other hand, do not perform any ma-
sonry work. In addition, Engineers are employed
on the basis of a guaranteed 8-hour workday and
thus would be paid for a considerable amount of
idle time. Therefore, both of these factors favor
awarding the work to employee members of the
Laborers.
4. Employer preference
The Employer has assigned the disputed work to
employees represented by the Laborers and has ex-
pressed its preference that the disputed work be
performed by these employees. Employer prefer-
108
OPERATING ENGINEERS, LOCAL NOS. 77, ET AL.
ence therefore favors an award to employees repre-
sented by the Laborers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all the relevant factors involved, we
conclude that employees represented by the Labor-
ers are entitled to perform the work dispute. In
making this determination, we are awarding the
work in dispute to the employees of Bricklaying,
Inc., who are represented by the Laborers, but not
to that Union or its members. Our determination is
limited to the particular dispute which 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 of Bricklaying, Inc., who are rep-
resented by Laborers' International Union of North
America, Local Union 74, AFL-CIO, are entitled
to perform the work of operating the forklift at the
Dirksen Senate Office Building construction site in
Washington, D.C.
2. International Union of Operating Engineers,
Local Nos. 77, 77-A, 77-RA, 77-B, 77-C, 77-D,
AFL-CIO, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
Bricklaying, Inc., to assign the disputed work to
employees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers, Local Nos. 77, 77-A, 77-
RA, 77-B, 77-C, 77-D, AFL-CIO, shall notify the
Regional Director for Region 5, in writing, wheth-
er or not it will refrain from forcing or requiring
the Employer, by means proscribed by Section
8(b)(4)(D) of the Act, to assign the disputed work
in a manner inconsistent with the above determina-
tion.
109