Operating Engineers, Local 825

National Labor Relations Board - Board Decisions

Jun 1, 1979

242 N.L.R.B. 673 (N.L.R.B. 1979)

OPERATING ENGINEERS. LOCAL 825
Local 825, Branches A, B, C, D, International Union
of Operating Engineers, AFL-CIO and Bafill Con-
struction Corp. and Construction and General La-
borers Union, Local 17, AFL-CIO. Case 2-CD-560
June 1, 1979
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN FANNING AND MEMBERS JENKINS,
PENELLO, AND TRUESDALE
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by Bafill Construction Corp., herein
called the Employer, alleging that Local 825,
Branches A, B, C, D, International Union of Operat-
ing Engineers, AFL-CIO, herein called Respondent
or Operating Engineers, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to its members
rather than to employees represented by Construction
and General Laborers Union, Local 17, AFL-CIO,
herein called Laborers.
Pursuant to notice, a hearing was held before Hear-
ing Officer David E. Leach III on July 10 and August
21-22, 1978. All parties appeared and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
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, an Illinois corporation with its principal place
of business in Mineola, New York, is engaged in the
business of general masonry construction. During the
past year the Employer received finished products
from outside the State of New York having a value in
excess of $50,000. The parties also stipulated, 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 Oper-
ating Engineers 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
The parties stipulated the following:
On April 7 or 8, 1978, John McLendon, Operating
Engineers business agent, went to the Otisville Prison
jobsite where Bafill was working and asked Frank
Filloramo. Bafill's president, to assign the work of op-
erating the high-reach forklift to Respondent's mem-
bers. Filloramo stated the work had been assigned to
laborers (represented by Local 17). The Operating
Engineers submitted the matter to the Impartial Ju-
risdictional Disputes Board, herein called IJDB. On
May 11, 1978, the case was heard and the assignment
was subsequently made to Respondent. Thereafter,
Filloramo again refused McLendon's request that his
members be assigned the work. The Operating Engi-
neers then picketed Bafill with signs which stated that
Bafill did not have a contract with them for the pe-
riod from on or about May 17, 1978, through June 6,
1978.
On June 8, 1978, the parties entered into an interim
agreement by which Bafill agreed to assign the fork-
lifts alternatively between the Laborers and the Oper-
ating Engineers, and the picketing ended. The agree-
ment stipulated that it merely ended the picketing so
that the work could continue while the Board consid-
ered the jurisdictional dispute herein. It was further
agreed by and between the parties that the interim
agreement of June 8, 1978, was not to be considered
as binding upon the parties beyond its described limi-
tations.
B. The Work in Dispute
The work in dispute involves the operation of Baf-
ill's high-reach forklifts, including the "Pettibone"
and "Lull" types, at the Otisville Federal Prison con-
struction site in Orange County, New York.
C. The Contentions of the Parties
The Employer contends that its assignment of the
high-reach forklift work to the Laborers was proper:
that in Orange County, it is the custom among ma-
sonry contractors to assign the work to laborers, both
for economy and because of the satisfactory skill of
the Laborers. The Laborers asserts that it was as-
signed the work of operating the forklifts because
they were being used to supply masons with material,
which is properly within the scope of the classification
of mason tenders.
Respondent takes the position that both it and the
Laborers are members of the Building and Construc-
tion Trades Department of the AFL-CIO, and are
242 NLRB No. 97
673
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore bound by the decision of the IJDB of May
1978, which assigned the disputed work to the Oper-
ating Engineers. It also argues that Bafill is similarly
bound due to its contractual arrangement with the
Laborers. In the alternative, it argues that on the mer-
its the disputed work should be assigned to the Oper-
ating Engineers.
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 dispute.
The record shows that McLendon, business agent
for the Operating Engineers, claimed the work for his
union after it had been assigned by the Employer to
the Laborers. The Operating Engineers then sub-
mitted the matter to the IJDB and received the as-
signment of the work in dispute from it. McLendon
again requested the work and was refused. The Oper-
ating Engineers then picketed Bafill from about May
17 through June 6, 1978, to obtain the disputed work.
These facts establish reasonable cause to believe that
Section 8(b)(4)(D) was violated.
The Operating Engineers however contends that an
agreed-upon method for the voluntary adjustment of
the dispute exists. We agree. The Employer, although
not a member of the Construction Employers of the
Hudson Valley, Inc., admitted that it was bound by
that association's collective-bargaining agreement
with the Laborers by virtue of the agreement between
the Mason Contractors Association (of which it is a
member) and the Laborers International Union.
which provided that the Employer would conform its
operations to the applicable local agreement. The La-
borers also admitted that the aforesaid agreement
covered all of the mason contractors working in the
area in which the Otisville Prison jobsite is located
and that Bafill was expected to comply with it as well,
because of its agreement with the International.' Arti-
cle IV, "Trade Jurisdiction," of the agreement pro-
vides:
(a) The employer agrees to recognize the juris-
diction of the Laborers International Union of
Wl.l regard to Member Jenkins' reliance on Local 42. Bricklavers, Ma-
sons and Plasterers International Union Ameruia. A FL (10 (Spancrete
Northeast, Inc.). 192 NLRB 64 (1971), we note that there the local agreement
did not provide for resort to the National Joint Board (the IJDB's prede-
cessor), but on the contrary, the employer had deliberately negotiated out of
it all references to the Joint Board. We note further that the Employer and
Local 17 agreed that it was not necessary for the Employer to execute the
local agreement because it was hound to it anyway by virtue of its Interna-
tional agreement. and that the local agreement itself provided that those
employers having national agreements with the International did not have to
sign the local one.
North America (see "Jurisdiction", pages 1-5)
that have been established by agreements with
other crafts, awards contained in the greenbook,
or as a result of decisions by the Impartial Board
for The Settlement of Jurisdictional Disputes.
(b) In the event that there is a jurisdictional
dispute, the parties to this agreement shall ad-
here to the agreement known as the Construction
Industry Plan for Settlement of Jurisdictional
Disputes negotiated between the Building
Trades Department and the major national asso-
ciations of contractors. Disputes concerning ju-
risdiction shall not be subject to the grievance
and arbitration procedures otherwise provided in
this agreement but as above stipulated.
Thus, the Employer and the Laborers have agreed
to resolve this jurisdictional dispute in the manner
provided by the IJDB. The Operating Engineers and
the Laborers are members of the Building and Con-
struction Trades Department, AFL-CIO, and as
members they are signatory to the agreement creating
the IJDB and are bound to abide by its rules and
procedures for the settlement of jurisdictional dis-
putes.2 Since all parties are bound to submit this dis-
pute to the IJDB,3 we shall quash the notice of hear-
ing issued herein.
ORDER
It is hereby ordered that the notice of hearing is-
sued in this proceeding be, and it hereby is, quashed.
MEMBER JENKINS, dissenting:
I would proceed to determine this dispute, rather
than quash the notice of hearing. I have previously
dissented over the policy this Board is following in
denying employers the right to invoke the procedures
of Section 10(k) of our Act by finding agreed-upon
voluntary methods for the resolution of the dispute
when, in fact, the employer has never agreed that
such disputes should be resolved in another forum.4
In the instant case, my colleagues find that the Em-
ployer, although not a member of the Construction
Employers of the Hudson Valley, Inc., is bound by
2 xal Union No. 70, International Association of Bridge, Structural and
Ornamental Iron Workers. AFL CIO, and its agent. James R. Bunch (F W.
Owens and Associates, Inc.), 205 NLRB 1171 (1973).
Pipetfitersv Local No 195, United Associration of Journtymen & Apprentices
of Plumbing & Pipefitting Industr of the United State.s and Canada (Cleveland
Wrecking Companv, 218 NLRB 172 (1975), Painters ocal 203, Interna-
tional Brotherhood of Painters and Allied Trader (E 0. Brunner Plastering
(o.). 234 NLRB 235 (1978).
' See my dissenting opinions in United Association of Journeymen and Ap-
prentie.s of the Plumbing and Pipe Fitting Industri of the United States and
('anada, Local Union No. 447, AFL CIO (Capitol Air Conditioning, Inc. J, 224
NLRB 985 (1976); Glass Workers Local No. 740, International Brotherhood
of Painters and Allihed Trades, AFL CIO (Tom Benson Glass Co., Inc.), 224
NLRB 1155 (1976),
674
OPERATING ENGINEERS. LOCAL 825
that association's collective-bargaining agreement
with Laborers Local 17, and therefore bound to the
jurisdiction of the IJDB. I do not agree.
The Employer is engaged in masonry work on con-
struction projects in the New York City area. The
Employer has not worked within the jurisdiction of
either Operating Engineers Local 825 or the Laborers
Local 17, prior to the present job at the Otisville
Prison site. Through its membership with the Mason
Contractors Association of America, the Employer
was subject to an International agreement between
MCAA and the Laborer's International Union of
North America. The agreement between MCAA and
Laborers' International Union provides at article V as
follows: "When the Employer enters into an area
where wages, hours and working conditions have
been agreed upon through bona fide collective bar-
gaining, the Employer will be presented with such
evidence by the Union and the Employer will con-
form its operations accordingly."'
At a meeting in March 1978 prior to the Otisville
operation, Frank Filioramo. president of the Em-
ployer, discussed with Lorenzo Diorio, business man-
ager of Laborers Local 17, the need for forklift opera-
tors and assigned that operation to members of the
Laborers Local 17. The Employer did not execute the
standard collective-bargaining agreement utilized by
the Laborers Local 17 in the Otisville area because
under article V, quoted above, the Employer was not
obligated to execute a local agreement but merely to
I The Board has held in a previous case that this agreement does not bind
an employer to joint Board procedures for the settlement of jurisdictional
disputes. Local 42. Bricklayers. Masons and Plasterers International Union of
America, AFL CIO (Spancrete Northeast. Inc.). 192 NLRB 64. 65. fn. 2
(1971).
conform his operation to wages, hours, and working
conditions that had been agreed upon through bona
fide collective bargaining. Since the Employer only
agreed to be bound by Laborers local 17's wages,
hours, and working conditions,. I fail to see how this
type of agreement binds the Employer to the IJDB.
The Employer notified the IJDB, prior to its hearing
the dispute, that Bafill was not bound to the proce-
dures of the IJDB and would not and did not partici-
pate in the proceedings. There is no other stipulation
nor agreement that binds Bafill to the IJDB. Thus,
one of the parties (MCAA) to the only agreement
upon which the majority relies to find Bafill bound to
the IJDB has asserted that that agreement does not so
bind Bafill, and has so advised Bafill. Thus my col-
leagues' statement that the Employer "admitted that
it was bound by that Association's collective-bargain-
ing agreement" is in error. Both Bafill and MCAA
have asserted precisely the opposite.
This Board has held that, regardless of whether the
unions involved are bound to arbitration procedures
such as the IJDB, if the employer has not agreed to
be bound, this Board is empowered and directed un-
der Section 10(k) of the Act to make a binding deter-
mination of the dispute that will be controlling on all
the parties, including the employer. 6
I find that there is no agreement binding all the
parties to voluntary adjustment of the dispute here
involved, and I would determine the dispute on its
merits.
N 1I. R B v Plastrrerrs .ocal L'nion No. 79, Operative Plasterers' and Ce-
menl Mavons' International 4ssociatrlon. AFL ('10 ITevas State Tile & Ter-
razzo Co. el al. 404 U.S. 116 1971): ather. Union l-al 104. The 4"ood,
Wire and Metal Lathers International I on. .4FI. ('1O (he Blaine Petrn
Cornpani). 186 N.RB 365. 367 (1970)
675