Winegardner Masonry, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1669 (N.L.R.B. 2000)

OPERATING ENGINEERS LOCAL 12 (WINEGARDNER MASONRY) 1669
International Union of Operating Engineers, Local
12, AFL–CIO and Winegardner Masonry, Inc.
and Southern California District Council of La-
borers and its Affiliated Locals 220, 300, 439,
507, 585, 591, 652, 783, 802, 806, 1082, and
1184.1 Case 21–CD–634
August 31, 2000
DECISION AND DETERMINATION OF DISPUTE
BY CHAAIRMAN TRUESDALE AND MEMBERS
FOX AND HURTGEN
The charge in this 10(k) proceeding was filed on April
20, 20002 by the Employer, Winegardner Masonry, Inc.
(Employer). The charge alleges that the Respondent,
International Union of Operating Engineers, Local No.
12 (Operating Engineers), violated Section (8)(b)(4)(D)
of the National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer to
assign certain work to employees represented by Operat-
ing Engineers rather than to employees represented by
Laborers International Union of North America, Local
No. 1184 (Laborers). The hearing was held on May 24
and June 2 before hearing officer David Selder.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The Employer and Laborers stipulated that the Em-
ployer, a California corporation, is a masonry contractor
with its principal offices located at 32147 Dunlap Boule-
vard, Suite A, Yucaipa, California, and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. Operating Engineers would not stipulate to any
commerce information concerning the Employer. Ac-
cording to record testimony, during the year prior to the
hearing, the Employer has purchased and received mate-
rials and supplies valued in excess of $50,000 directly
from points outside the State of California and has re-
ceived gross revenues in excess of $500,000. Based on
record testimony, the Board finds that the Employer is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. All parties stipulated that Operating
Engineers and Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a masonry contractor operating in
Southern California. The Employer is signatory to a col-
lective-bargaining agreement between the Executive
Council of the Mason Contractors’ Exchange of South-
ern California, Inc. and the Southern California District
Council of Laborers. The Employer does not have a con-
tract with Operating Engineers. The work in dispute in
this case is located on property owned by Walt Disney
Imaging (WDI) in Anaheim, Califonia. WDI hired
MBK, Inc. as the general contractor for the construction
of a new AMC Theatre (the site). MBK, Inc., in turn,
subcontracted with the Employer to perform masonry
construction on the theatre. The Employer began work
on the project in April 2000.

1 Name appears as amended at the hearing.
2 All dates are in 2000, unless otherwise stated.
In 1997, the Employer purchased a crane to work on
larger masonry projects. Since then the machine has
been operated solely by bricktender Greg Walker, an
employee represented by Laborers. In mid-April 2000,
the Employer transported the crane to the site because it
was needed to lower materials into the basement of the
theatre.
Walker testified that on April 19, Ronnie Edwards, a
representative of Operating Engineers, visited the site
and spoke with Walker, who was operating the Em-
ployer’s crane. Edwards asked Walker if he was a mem-
ber of a union, and Walker responded that he was repre-
sented by Laborers. According to Walker, Edwards told
him that an employee represented by Operating Engi-
neers should be operating the crane and that Walker
could not operate it anymore.
After speaking with Walker, Edwards spoke with
Dennis Bartholomay, the Employer’s foreman on the
site. According to Bartholomay, Edwards told him that
an employee represented by Operating Engineers should
be operating the crane, and that Bartholomay should ei-
ther remove Walker from the crane or cease to operate it.
Walker testified that he overheard Edwards tell Bar-
tholomay that Operating Engineers would “throw up a
picket” if the Employer did not replace Walker with an
employee represented by Operating Engineers or remove
the crane from the job. Edwards testified that he told
Bartholomay that he should have an employee repre-
sented by Operating Engineers on the crane, but denied
saying that the Operating Engineers would picket if
Walker were not removed from the crane.
Finally, Edwards spoke with Mike Bradley, the super-
intendent on the site for MBK, Inc. According to Brad-
ley, Edwards told him that an employee represented by
Operating Engineers should be operating the crane, and
that “it would be a shame to have to put a picket on the
job.” Immediately following his conversation with Ed-
wards, Bradley told Bartholomay to cease operating the
crane. According to the testimony of Bradley and
Walker, Bartholomay folded the crane up, and it sat idle
on the site for the next 3 days. Edwards testified that in
speaking to Bradley, he referred to a picket by the Paint-
ers Union, which Bradley might have misconstrued as a
threat to picket by Operating Engineers.
Carolyn Winegardner, president of the Employer, testi-
fied that on April 20, she sent a letter to Bradley, which
331 NLRB No. 189
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1670
stated that she intended to resume operation of the crane
immediately, with Walker as operator. According to
Winegardner, after she sent the letter to Bradley, he
called her and told her that he had received another threat
from Operating Engineers. Bradley also informed Wine-
gardner that if a strike occurred, the Employer would be
responsible for all costs.
On April 20, Winegardner filed charges against Oper-
ating Engineers on behalf of the Employer.
Edwards testified that on or around April 21 he called
Alan Rose, Operations Manager for WDI, and informed
him that the Employer’s crane was not being operated by
an employee represented by Operating Engineers, and
that Rose said he would look into the matter. According
to Edwards, a few days later, Rose called Edwards and
told him that the crane had been removed. Edwards tes-
tified that he did not say anything to Rose concerning a
picket line.
According to Winegardner, on April 24, she received
a call from Gordon Winn, Project Manager of MBK,
Inc., in which he told her that Matt May of WDI had
informed him that there would be a strike unless the
crane was removed from the site. Winn also sent Wine-
gardner a letter on April 24, in which he informed her
that all costs incurred from a strike would be the respon-
sibility of the Employer. Bradley testified that May told
him that there would be a strike unless the crane was
removed from the site.
On April 25, Winn sent a letter to Winegardner, stating
that Rose and Randy Kalish of WDI told him that they
had received a call from Operating Engineers threatening
to strike if the crane were not removed from the site that
afternoon. Bradley testified that Rose told him that he
had been threatened in a phone conversation by a repre-
sentative of Operating Engineers. Bradley further testi-
fied that Rose ordered that the crane be removed from
the site.
On April 25, Winegardner had the crane removed from
the site and transported back to the Employer’s head-
quarters in Yucaipa.
B. Work in Dispute
The work in dispute, as stated in the notice of hearing,
involves the operation of the crane used to move ma-
sonry and other supplies at the AMC Theatre construc-
tion site located at Disneyland in Anaheim, California.
C. Contentions of the Parties
1. Employer
The Employer contends that a jurisdictional dispute
exists, that there is no agreed upon method for resolving
such disputes, and that Operating Engineers’ motion to
quash the notice of hearing should be denied. The Em-
ployer contends that there is reasonable cause to believe
that Operating Engineers violated Section 8(b)(4)(D) of
the Act and that the work in dispute should be awarded
to employees represented by Laborers.
The Employer contends that its collective-bargaining
agreement between the Executive Council of the Mason
Contractors’ Exchange of Southern California, Inc. and
the Southern California District Council of Laborers
covers the work in dispute and that the Employer prop-
erly assigned the work to an employee represented by
Laborers. In addition to the collective-bargaining
agreement, the Employer contends that employer prefer-
ence and past practice, relative skills and safety, industry
practice, and economy and efficiency of operations favor
an award of the disputed work to employees represented
by Laborers. The Employer argues that the Board should
issue a broad order encompassing the operation of the
Employer’s crane at all future job sites.
2. Laborers
Laborers contends that a jurisdictional dispute exists
between the two unions, that there is no agreed upon
method for solving jurisdictional disputes, and that Oper-
ating Engineers’ motion to quash should be denied. La-
borers takes no position as to whether there is reasonable
cause to believe that Operating Engineers violated Sec-
tion 8(b)(4)(D). Laborers contends that if the Board does
find reasonable cause to believe that Operating Engineers
violated Section 8(b)(4)(D) of the Act, however, then the
work in dispute should be awarded to employees repre-
sented by Laborers on the basis of the applicable collec-
tive-bargaining agreement, employer preference and past
practice, industry practice, and economy and efficiency
of operations. Laborers takes no position as to whether
the Board should issue a broad or narrow order.
3. Operating Engineers
Operating Engineers contends that the Notice of 10(k)
Hearing should be quashed and the case dismissed on the
basis that the dispute has been adjusted pursuant to a
handshake agreement which exists between Disney and
the Building Trades Department, and that therefore there
are currently no competing claims for the disputed work.
Operating Engineers also contends that there is no rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated.
If the Board should determine that the dispute is prop-
erly before the Board for determination, Operating Engi-
neers contends that the work in dispute should be
awarded to employees represented by Operating Engi-
neers based on the factors of area and industry practice,
economy and efficiency of operations, and relative skills.
Operating Engineers also contends that the jurisdictional
award should be limited to the work in dispute at the
AMC Theatre Project.
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: (1) there are competing claims for
work; (2) there is reasonable cause to believe that Sec-
OPERATING ENGINEERS LOCAL 12 (WINEGARDNER MASONRY) 1671
tion 8(b)(4)(D) has been violated; and (3) the parties
have not agreed on a method for the voluntary adjust-
ment of the dispute.
Operating Engineers contends that there are not active
competing claims to the disputed work, since the crane
has been removed from the site. Winegardner testified,
however, that she removed the crane from the site after
she received the April 25 letter from Winn, advising her
that Operating Engineers had informed Rose and Kalish
that, if the crane were not removed by the end of the day,
Operating Engineers would picket the project on April
26. According to the testimony of Bradley, Winegard-
ner, Walker, and Bartholomay, the crane is still needed at
the AMC Theatre Project, and, once the current situation
has been resolved, it is likely that the Employer will re-
sume operation of the crane at the site. Moreover, the
record shows that Edwards, a representative of Operating
Engineers, asserted to Walker, Bartholomay, and Bradley
that the work currently assigned to an employee repre-
sented by Laborers should be assigned to an employee
represented by Operating Engineers. Based on this evi-
dence, we find that there are competing claims for the
disputed work.
Operating Engineers also asserts that there is no rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. Bradley testified that on April 19 Edwards told
him that “it would be a shame to have to put a picket on
the job.” Edwards denies making such a statement.
Walker and Bartholomay, however, testified that imme-
diately after Bradley spoke with Edwards, he ordered
that Bartholomay cease operation of the crane. Accord-
ing to Bradley and Walker, Bartholomay then folded up
the crane and put it away for the next 3 days. Walker
also testified that he overheard Edwards tell Bartholomay
that “it would be shame to have to put a picket on the
job.” While Edwards denies mentioning anything about
a picket to Bartholomay, he testified that he told Bar-
tholomay that an Operating Engineer, rather than a La-
borer, should be operating the crane.
In addition to the testimony of Bradley and Walker
concerning threats made to or overheard by them, the
record contains further accounts of threats made by Op-
erating Engineers.3 Winn informed Winegardner in a
letter dated April 25 that Rose and Kalish had received a
threat to picket in a phone conversation with a represen-
tative of Operating Engineers. Bradley testified that Rose
also told him that he had received a threat in a phone
conversation with a representative of Operating Engi-

3 Operating Engineers asserts that the Board should not consider this
additional evidence because it constitutes hearsay. The Board has ruled
hearsay testimony admissible when it is probative and corroborated by
other evidence. See RJR Communications, 248 NLRB 920, 921 (1980),
Dauman Pallet, Inc., 314 NLRB 185, 186 (1994), and Teamsters Local
705 (Pennsylvania Truck Lines), 314 NLRB 95, 98 (1994). Compare
Operating Engineers Local 4 (The Henley-Lungren Co.), 268 NLRB
1227 (1984).
neers. Bradley also testified that Rose ordered that the
crane be removed from the site. While Edwards denies
making any sort of threat, he testified that he had two
phone conversations with Rose on or around April 21.
On April 24, Winn sent a letter to Winegardner stating
that May had received a threat from Operating Engineers.
Bradley testified that May directly told him that he had
received a threat from Operating Engineers.
Based on the evidence in the record, and without any
requirement to resolve conflicts in the testimony,4 the
Board finds reasonable cause to believe that Operating
Engineers violated Section 8(b)(4)(D).5
Operating Engineers also contends that there is an
agreed on method for solving jurisdictional disputes con-
cerning this project, citing a “Handshake Agreement”
between Disney and the Building Trades. There was no
testimony as to which building trades were encompassed
in this agreement. Winegardner testified that the Em-
ployer is not bound by any jurisdictional dispute settle-
ment process with the two unions. Based on the above
considerations, we find that the record fails to establish
that there is an agreed upon method for solving jurisdic-
tional disputes between the Employer, Operating Engi-
neers, and Laborers.
Accordingly, we find that the dispute is properly be-
fore the Board for determination and deny Operating
Engineers’ motion to quash the notice of hearing.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive 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. Certification and collective-bargaining agreements
The parties stipulated that there is no Board certifica-
tion regarding the work in dispute. The Employer does
not have a collective-bargaining agreement with Operat-
ing Engineers. The Employer and Laborers, however,
are parties to an agreement between the Southern Cali-
fornia District Council of Laborers and the Executive
Council of the Mason Contractors’ Exchange of South-
ern California, Inc. The agreement describes the duties
of a bricktender as including the following:
4 See Bricklayers Local 15 (Fusco Corp.), 278 NLRB 967, 968
(1986).
5 We note that “[t]his reasonable cause standard is substantially
lower than that required to establish that the statute has in fact been
violated.” Plumbers Local 562 (C&R Heating & Service Co.), 328
NLRB 1235 (1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1672
Fork lift or conveyer belt or conveying of all material
used by the Brick Mason from the first point of deliv-
ery to the mechanic whether done manually or by ma-
chinery (semi-automatic or automatic hoist, or grout or
mortar mixing or pumping machine) or equipment de-
vised to replace the wheelbarrow or buggy. Any de-
vice used to transport or install all masonry materials,
including, but not limited to, stone and/or prefabricated
materials.
Based on the collective-bargaining agreement between
the Employer and Laborers, the factor of collective-
bargaining agreements favors awarding the work in dis-
pute to employees represented by Laborers.
2. Employer preference and past practice
Winegardner testified that the Employer purchased a
crane in 1997 to work on larger masonry projects.
Winegardner and Walker both testified that Walker has
been employed by the Employer for over 20 years, and
that since the Employer purchased the crane in 1997,
Walker has been its sole operator. Winegardner testified
that Walker has operated the Employer’s crane at four
other masonry projects.
Winegardner and Bartholomay both testified that it is
the preference of the Employer to retain Walker, who is
represented by Laborers, as the Employer’s sole crane
operator. Therefore, this factor favors awarding the work
in dispute to employees represented by Laborers.
3. Area and industry practice
John Smith, manager of Laborers, Winegardner, and
Robert Long, manager of the Executive Council of the
Mason Contractors Exchange of Southern California, Inc.,
all testified that employees represented by Laborers have
operated cranes on other construction sites in the area.
According to Jere Meachem, the Director of Labor Rela-
tions for the Southern California Contractors Association,
Jim Hulse, equipment manager for Brad Crane Service,
and Dennis Williams, a field representative for Operating
Engineers, it is the general practice in Southern California
for masonry contractors to use employees represented by
Operating Engineers to operate cranes.
Accordingly, this factor does not favor an award of the
disputed work to employees represented by either Labor-
ers or Operating Engineers.
4. Relative skills
Walker testified that he completed a 40-hour crane op-
eration training course in 1980 and completed an 8-hour
safety seminar in 1997. Walker further testified that he
has been operating cranes for Winegardner for 3 to 4
years, and other witnesses testified that Walker has been
operating the Employer’s crane since 1997. Bartholo-
may, the foreman at the site, testified that Walker is able
to operate all of the machinery owned by the Employer.
Jim Phillips, a representative of Operating Engineers,
testified that Operating Engineers have a state-approved
crane operation apprenticeship program that includes
both classroom and on-the-job training. Phillips also
testified that there are no licensing requirements for op-
erating a crane in Anaheim, where the site is located.
Operating Engineers concedes that Walker possesses
the skills needed to operate the Employer’s crane, by
asserting that the Employer could continue to have
Walker operate the crane as long as he were represented
by Operating Engineers.6 Based on this evidence, we find
that this factor does not favor an award of the disputed
work to employees represented by either Union.
5. Economy and efficiency of operations
Winegardner testified that it is more economical and
efficient to have a bricktender represented by Laborers
operate the crane, so that the worker can perform other
duties when he is not operating the crane. Winegardner
testified that when Walker is not operating the crane, he
mixes mud, tends the masons, carries rebar, puts rebar in,
vibrates the grout in the walls, helps with the grout nose,
runs the pump, tempers the mortar, and makes sure the
block is available for the brick masons. Winegardner also
testified that even when Walker operates the crane, he
sets up his own loads, picks them up, and drops them.
Foreman Bartholomay testified that Walker performs
many duties in addition to operating the crane, including
operating forklifts, mixing mortar, and tending the
boards. Walker testified that he operates forklifts, and
performs a wide range of duties, from mixing mud to
building scaffolds, and performs other bricktending du-
ties when he is not operating the crane. Bradley, the job
superintendent for MBK, Inc., testified that Walker is a
“general man” and that he performs many duties includ-
ing operating the forklifts, and preparing grout and mor-
tar.
Walker testified that on any given day he might spend
anywhere from 15 minutes to the entire day operating the
crane, but that on average he probably spends about 30
percent of his time operating the crane. Bartholomay
testified that Walker operates the crane anywhere from 1
to 7 hours a day.
Winegardner testified that since the crane is operated
on a sporadic basis, an employee whose only job was to
operate the crane would have lag time for which he
would have to be compensated. Bartholomay also testi-
fied that having a person strictly for the purpose of oper-
ating the crane would increase costs for Winegardner
since the employee would not be able to perform the ad-
ditional duties performed by Walker. Long testified that
employing an engineer to operate the crane would in-
crease costs for Winegardner, since the engineer would

6 We note that this concession, first raised at the hearing, does not
warrant the conclusion that the dispute is purely representational in
nature, where Operating Engineers initially had indicated that Walker
should not be performing the work in dispute. Compare Laborers
Local 1 (DEL Construction Co.), 285 NLRB 593 (1987).
OPERATING ENGINEERS LOCAL 12 (WINEGARDNER MASONRY) 1673
not be able to perform the many additional duties of a
bricktender. Operating Engineers asserts that Walker
could continue to perform his current duties, including
the operation of the crane, if the Employer signed a col-
lective-bargaining agreement with Operating Engineers.
This factor favors awarding the work in dispute to em-
ployees represented by Laborers.
CONCLUSION
After considering all the relevant factors, we conclude
that the relevant factors favor an award of the disputed
work to employees represented by Laborers. We reach
this conclusion relying on collective-bargaining agree-
ments, employer preference and past practice, and econ-
omy and efficiency of operations. In making this deter-
mination, we are awarding the work to employees repre-
sented by Laborers, not to that Union or its members.
SCOPE OF THE AWARD
The Employer seeks a broad award of the disputed
work, covering the operation of the Employer’s crane at
all future job sites. The Board has held that it will re-
strict the scope of its determination to a specific job site
unless there is evidence that similar disputes may occur
in the future.7 There is no evidence that Operating Engi-
neers has claimed similar work to be performed by the
Employer in the future. Further, the evidence does not
show that Operating Engineers has a proclivity to engage

7 See Iron Workers Local 1 (Fabcon), 311 NLRB 87, 93 (1993).
in unlawful conduct to obtain work similar to the dis-
puted work.8 Accordingly, the present determination is
limited to the particular controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Winegardner Masonry, Inc. repre-
sented by Southern California District Council of Labor-
ers and its affiliated Locals 220, 300, 439, 507, 585, 591,
652, 783, 802, 806, 1082 and 1184 are entitled to per-
form the operation of the crane used to move masonry
and other supplies at the AMC Theatre construction site
located at Disneyland in Anaheim, California.
2. International Union of Operating Engineers, Local
No. 12 is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Winegardner Masonry,
Inc. to assign the disputed work to employees repre-
sented by it.
3. Within 14 days from this date, Operating Engineers
Local 12 shall notify the Regional Director for Region 21
in writing whether it will refrain from forcing Winegard-
ner Masonry, Inc. by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with this determination.

8 See Electrical Workers IBEW Local 211 (Sammons Communica-
tions), 287 NLRB 930, 934 (1987), and IBEW Local 3 (U.S. Informa-
tion Systems), 324 NLRB 604, 607 (1997)