Laborers' International Union Of North America, Local 1359

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1034 (N.L.R.B. 1986)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America,
Local 1359 and Krall's Masonry, Inc. and
International Union of Operating Engineers,
Local 139, AFL-CIO. Case 30-CD-118
30 September 1986
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
The charge in this Section 10(k) proceeding was
filed 18 March 1986 by the Employer , alleging that
the Respondent , Laborers ' International Union of
North America , Local 1359 (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 employees it represents rather than to em-
ployees represented by International Union of Op-
erating Engineers, Local 139 , AFL-CIO (Operat-
ing Engineers). The hearing was held 27 May 1986
before Hearing Officer Gerald McKinney.
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
The Employer, a Wisconsin corporation, is en-
gaged in the business of masonry subcontracting
from facilities located in Wausau, Wisconsin.
During its past fiscal year ending 31 December
1985, a representative period, the Employer pur-
chased and received goods and materials valued in
excess of $50,000 directly from suppliers located
outside the State of Wisconsin. The parties stipu-
late, 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 is a labor or-
ganization within the meaning of Section 2(5) of
the Act.'
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer, the subcontractor herein, is
bound to the 1984-1987 Fox River Valley, Sheboy-
gan Laborers' Agreement (Laborers' Agreement)
entered into by the Fox River Valley Contractors
Association, the Sheboygan Contractors Associa-
' The Operating Engineers did not appear at the hearing.
281 NLRB No. 140
tion, the Wisconsin River Valley Independent Con-
tractors, and the Wisconsin Laborers' District
Council and its affiliates, including Laborers Local
1359. An addendum to that agreement executed by
the Employer on 14 February 1985 guarantees
mason-tending forklift work to employees repre-
sented by the Laborers. The Employer is a member
of the Mason Contractors Association of America,
Inc. and is also bound to the master collective-bar-
gaining agreement between that organization and
the Laborers' International Union of America
(MCAA Agreement). The MCAA Agreement re-
quires signatory contractors to assign mason-tend-
ing work to employees represented by the Labor-
ers and to abide by the local Laborers' Agreement.
Fluor Brothers Construction, the general con-
tractor herein, is a member of the Wisconsin Chap-
ter, Associated General Contractors of America,
Inc., which is party to a master agreement, known
as the Area II Agreement, with the Operating En-
gineers . Fluor is also bound to the local Laborers'
Agreement.
In October 19852 Fluor subcontracted to the
Employer the masonry work at the Marathon
County Health Care Center, Wausau, Wisconsin.
The Employer began performing the work on 22
October and initially assigned to employees repre-
sented by the Laborers the disputed work of oper-
ating forklifts. In early November the Operating
Engineers complained to Fluor regarding the use
of laborers on the Employer's forklifts. During a 5
December meeting Operating Engineers Represent-
atives Shaw, Guthman, and Brown informed Fluor
Branch Office Manager Jerry Henry, and Krall's
President Frank Krall and Vice President Dennis
Krall that there was a problem with the Employ-
er's assignment of the forklift operation to employ-
ees represented by the Laborers and that the Oper-
ating Engineers claimed the work. During that
meeting various solutions to the problem were dis-
cussed, one of which was having the Employer
sign the Operating Engineers ' Agreement with an
addendum providing that all jurisdictional disputes
be submitted to the general presidents of the Inter-
national unions having jurisdiction over the local
unions involved in the jurisdictional dispute and
that the parties would "refuse to recognize or be
bound by decisions of any panel of arbitrators or
the National Labor Relations Board." The Em-
ployer refused to sign the addendum as a precondi-
tion to signing the Operating Engineers' Agree-
ment.
On 10 December the Operating Engineers filed a
grievance with Fluor, alleging that Fluor violated
2 All dates hereafter are 1985 unless otherwise noted
LABORERS LOCAL 1359 (KRALL'S MASONRY)
the subcontracting clause of the Area II Agree-
ment by entering into a subcontracting arrange-
ment with the Employer , which did not have a
contract with the Operating Engineers. On ap-
proximately 13 December Fluor instructed the Em-
ployer that Fluor 's operating engineer employees
were to operate the Employer's forklifts . Pursuant
to Fluor's instruction the Employer reassigned its
mason-tending forklift work to employees provided
by Fluor who were represented by the Operating
Engineers . The manning of forklifts by employees
represented by the Operating Engineers continued
for approximately 1 month . Sometime in January
1986 employees represented by the Laborers were
reassigned the forklift work . Thereafter, the Oper-
ating Engineers complained to Fluor about this
change and Fluor instructed the Employer to
assign the work to employees represented by the
Operating Engineers or the subcontract arrange-
ment would be terminated.
In a 15 January 1986 letter to the Employer con-
cerning possible forklift work assignment changes,
Laborers Business Manager Dennis Henrichs
threatened to take "such action as necessary to en-
force" the Laborers contract with the Employer,
including "picketing or removing [Laborers] from
the job site."
On 14 March 1986 the Employer was ap-
proached by Laborers Business Manager Henrichs
and told that if a laborer was not assigned the fork-
lift work, job action, including picketing , would be
taken the following Monday , 17 March 1986. On
that Monday, the Laborers picketed and removed
their people from the project , resulting in a job
shutdown.3 Work resumed on Friday , 21 March
1986, with the employees represented by the Oper-
ating Engineers being reassigned the mason-tending
forklift work. The instant unfair labor practice
charge alleging that the Laborers ' conduct violated
Section 8 (b)(4)(D) was filed by the Employer on
18 March 1986.
B. Work in Dispute
The work in dispute is the operation of forklifts
used in connection with the Employer 's masonry
work at the Marathon County Health Care Center,
Wausau , Wisconsin jobsite.
C. Contentions of the Parties
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
a The record indicates that pursuant to Fluor 's order the project was
also shut down for a few days in December 1985 and January 1986 pend-
ing resolution of the work assignment dispute.
1035
preference , skills , economy and efficiency of oper-
ation , and area practice.
The Operating Engineers by letter dated 25
March 1986 to the Regional Office for Region 30
contends , inter alia, that it made no threats , that it
will not be a party to a strike , that it does not wish
to represent the Employer 's employees, and that it
has no dispute with the Laborers.
The Laborers contends that the work should be
assigned to employees whom it represents based on
the collective-bargaining agreements , employer
preference and past practice , area practice, relative
skills, economy and efficiency of operation, and
prior Board determinations.
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.
It is undisputed that, in a 15 January 1986 letter
to the Employer , the Laborers threatened that if
the disputed work were reassigned to employees
represented by the Operating Engineers , the La-
borers would take action to enforce its contract
with the Employer , including picketing and the re-
moval of laborers from the job. The Laborers took
this action on 17-20 March 1986.
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 of 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
Fluor and the Operating Engineers are bound to
the Area II Agreement, which contains a provision
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicating that the operation of forklifts on con-
struction jobsites is exclusively the craft work of
the Operating Engineers, and a second provision
forbidding the subcontracting of work to employ-
ers who are not signatories to an agreement with
the Operating Engineers.4
Additionally, Fluor is bound to a local collec-
tive-bargaining agreement between the Fox River
Valley Contractors Association, the Sheboygan
Contractors Association, the Wisconsin River
Valley Independent Contractors, and the Wiscon-
sin Laborers' District Council and its affiliates, in-
cluding Laborers Local 1359. The local Laborers'
Agreement also covers the disputed work and for-
bids subcontracting to employers who are not sig-
natories to an agreement with that organization.5
4 The text of these provisions reads, in pertinent part:
Article VI Section 6.1 EQUIPMENT ASSIGNMENT: The Con-
tractor hereby agrees to assign any equipment within the jurisdiction
as described below to bargaining unit employees . The operation of
all hoisting and portable engines on building and construction work
where operated by steam , electricity, diesel, gasoline, hydraulic or
compressed air, butane , propane or other gases and nuclear atomic
power. Pumps, siphons, pulsometers, concrete mixers (145 and over)
and concrete pumps, street rollers, power shovels, backhoes, pile
driving rigs , cranes, clamshells, draglines, powered derricks , track or
rubber sidebooms, cableways , mounted or towed compactors , drills
(track or wagon type), hoists, tuggers , forklifts , endloaders , dinky lo-
comotive mucking machines , concrete finishers (self-propelled), as-
phalt plants and pavers , power jacks (slip form work), boilers, heat-
ers, boring machines (horizontal) concrete -breakers , and tampers
(self-propelled), manhoists, generators, shouldering machines, trench-
ers, bulldozers , scrapers, motor patrols, well points, screeds (power
propelled), welding machines, tower cranes, rotary drills (except
hand drills and/or jackhammers), dredges, barges, tug boats, safety
boats, work boats, floating equipment (marine), overhead cranes,
conveyors and augers (concrete), chippers (brush and stump), winch
trucks, A-frames, loading machines (powered or self-propelled)
power brooms and sweepers (tractor mounted or towed), prestress
machines, locomotives, tie placer, tie tamper , stone leveler, rail level-
ing machines , winches (powered), and all equipment specified in Ar-
ticle X.
[Article X, CLASSIFICATION AND WAGE RATES, contains
a wage rate for forklifts.]
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.
5 The text of these provisions reads, in pertinent part:
EXHIBIT B JURISDICTIONAL CLAIMS, TENDERS: Tend-
ing mason's, plasterers, carpenters, and other building and construc-
tion crafts. Tending shall consist of preparation of materials and the
handling and conveying of materials to be used by mechanics or
other crafts, whether such preparation is by hand or any other proc-
ess. 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, trucks, skid
loaders, or other motorized units used for such purpose , including
fork lifts.
Article X, Section 10 1: It 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 jurisdiction of this Agreement , the work shall be sublet to
a subcontractor signatory to this Agreement.
Thus, Fluor is subject to conflicting agreements
that require the same work assignment be made to
employees represented by both Unions.6
Through its membership in the Mason Contrac-
tors Association of America, Inc., the Employer is
bound to the master collective-bargaining agree-
ment between that organization and the Laborers'
International Union of North America. Article V
of that agreement provides, in pertinent part:
Work Jurisdiction. The work jurisdiction
covered by this Agreement when performed
by members of the ASSOCIATION ("Em-
ployer") shall include that work which has
been historically or traditionally or contrac-
tually assigned to members of the Laborers'
International Union of North America includ-
ing, but not limited to, the tending of masons,
unloading, mixing and handling of all materi-
als. Conveying of such materials by any mode
or method. .. .
The Employer is also party to the local Labor-
ers' collective-bargaining agreement, which as dis-
cussed above sets forth specific jurisdictional
claims for mason-tending forklift work.'' In view of
the broad language of the local and master collec-
tive-bargaining agreements between the Laborers
and the Employer, we find that the factor of the
collective-bargaining agreements favors an award
of the work in dispute to employees represented by
the Laborers.
2. Employer preference and past practice
The record reflects that on over 40 masonry sub-
contracting jobs it performed over the past 5 years,
the Employer has employed only employees repre-
sented by the Laborers to man forklifts. In view of
this established practice of assigning the work of
operating forklifts in connection with masonry
work to employees represented by the Laborers,
we find the factor of employer practice favors an
assignment of the disputed work to employees rep-
resented by the Laborers.
Dennis Krall testified that it is the Employer's
preference that the disputed work be performed by
laborers. Consequently, we also find that the factor
of employer preference favors an award to employ-
ees represented by the Laborers.
3. Area practice
Laborers International Representative Al Milak
testified that 70-90 percent of the general contrac-
B The Employer is not a party to the Area II Agreement and has not
agreed to be bound by its terms.
7 See fn. 5 The local Laborers' agreement also expressly contains a
wage rate at sec. 5.3 for "Forklift Operator "
LABORERS LOCAL 1359 (KRALL'S MASONRY)
tors in Area 1 and 90 percent in Area 2 subcontract
masonry work to masonry contractors .8 Milak fur-
ther testified that of the masonry work subcon-
tracted to masonry contractors, laborers perform
approximately 70 percent of the mason-tending
forklift work in Area 1 and 90 percent in Area 2.
Laborers Local 1359 Business Manager Dennis
Henrichs testified that in Local 1359 's jurisdiction,
with respect to all the jobs on which there have
been masonry subcontractors , laborers have been
assigned 95 percent of the mason -tending forklift
work. Local 1359 submitted into evidence a list of
47 masonry subcontracting jobs completed by the
Employer in the past 5 years . Henrichs testified
that all the mason-tending forklift work performed
on those jobs was performed by laborers represent-
ed by Local 1359 . Local 1359 also submitted a list
of masonry jobs performed by mason contractor
Kluz and Elmer , Inc. Henrichs testified that within
Local 1359 's jurisdiction together the Employer
and Kluz and Elmer handle 75 percent of the ma-
sonry contracting work . The Kluz and Elmer list
indicates that since the business began in 1957 the
company has never had anyone other than laborers
operate its forklifts.
The Employer submitted pages out of a regional
telephone directory listing the masonry contractors
for Wausau and a 50 -mile surrounding area, and for
the Wausau and Marshfield , Wisconsin areas.
Dennis Krall testified that all the masonry contrac-
tors listed employed laborers to run their forklifts.
Krall further testified that approximately 90 per-
cent of the masonry work in the areas covered was
subcontracted to masonry contractors rather than
performed by general contractors . Fluor Repre-
sentative Jerry Henry testified that in Wausau and
the surrounding area laborers have consistently
performed mason-tending forklift work . Henry tes-
tified he was not aware of any masonry subcon-
tractors in that area that have labor agreements
with Operating Engineers . Henry testified that only
5 percent of masonry work is performed by general
contractors in the area ; the remainder of the work
is subcontracted to masonry contractors who use
laborers on their forklifts . Under these circum-
stances, we find that the factor of area practice
favors an award of the disputed work to employees
represented by the Laborers.
4. Relative skills
There is no showing that the operation of the
forklifts in dispute requires a degree of skills not
possessed by operating engineers . It was undis-
puted that laborers had the requisite skills to per-
6 Area 1 and Area 2 together comprise the entire State of Wisconsin.
1037
form the forklift work . Krall and Henrich did testi-
fy, however, that the nature of the work involved
in tending masons required a knowledge of materi-
als and procedure with which laborers were famil-
iar, but operating engineers were not . We find that
this factor favors awarding the disputed work to
employees represented by Laborers.
5. Economy and efficiency of operation
The record contains undisputed testimony that it
is more economical and efficient to have employees
represented by Laborers rather than Operating En-
gineers perform mason -tending forklift work. The
Operating Engineers' contractual claim is limited to
forklift operations in connection with tending
masons . Both Milak and Krall testified that only a
small portion of a mason-tender's typical day is
spent operating a forklift . Mason-tenders also mix
mortar, supply and move scaffolding , and perform
utility duties and job cleanup . These mason -tending
nonforklift duties are not within the claimed juris-
diction of the Operating Engineers . Since the Em-
ployer uses its Laborer -represented employees for
work other than forklift operation , the Employer
would enjoy less operational flexibility and crew
economy and efficiency if operating engineers were
assigned the disputed work . Krall testified that it
became necessary for him to supervise operating
engineers on the forklift to inform them of the ma-
terials needed in tending masons. The laborers per-
formed the same work without such direct supervi-
sion. The record indicates that the applicable labor
agreement for the Operating Engineers contains a
minimum 4-hour showup pay provision. This
showup pay restriction would add to job costs with
no increase in productivity . Under these circum-
stances , we find that the factor of economy and ef-
ficiency of operation favors an award of the disput-
ed work to employees represented by the Laborers.
6. Arbitration award
The Laborers and the Employer rely on a tripar-
tite arbitration award issued by Arbitrator Joseph
Kerkman on 10 May 1985 involving the Allied
Construction Employers Association , Inc., two La-
borers locals from the Milwaukee , Wisconsin area,
and the Operating Engineers in support of their
contentions regarding the determination of this dis-
pute . In that case the arbitrator awarded the
mason-tending forklift work to employees repre-
sented by the Laborers. We note, however, that all
the parties did not participate in the arbitration
hearing or agree to be bound by the results thereof.
Accordingly , we give no weight to the arbitrator's
award.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. Prior NLRB determinations
The Laborers and Employer also rely on several
prior Board decisions involving the award of dis-
puted mason-tending forklift work: Laborers Local
317 (Mc Wad); ,274 NLRB 145 (1985) (Mc Wad III);
Laborers Local 1359, 264 NLRB 1397 (1982)
(Mc Wad II); Operating Engineers Local 139, 262
NLRB 1300 (1982) (Mc Wad 1); Laborers Local 118
(D. H. Johnson Co.), 262 NLRB 1147 (1982). We
find that the work involved in this dispute is simi-
lar to that involved in the above -cited cases.
Mc Wad I and Mc Wad II involved a different ma-
sonry contractor employer, but the same unions,
and similar circumstances and collective -bargaining
provisions. In all of these cases the Board awarded
the disputed work to employees represented by the
Laborers . Although these prior cases are not ac-
corded controlling weight in our determination,
they are a factor we have considered. Accordingly,
precedent favors an award of the disputed work to
employees represented by the Laborers.9
Conclusions
After considering all the relevant -factors, we
conclude that employees represented by the Labor-
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 past practice , area practice, relative skills,
economy and efficiency of operations, and prior
Board decisions . In making this determination, we
are awarding the work to employees represented
by the Laborers, not to that Union or its members.
9 Laborers Local 132 (Brockway Glass), 224 NLRB 117, 120 (1976).
Scope of the Award
The Employer contends that, because the Oper-
ating Engineers has persisted in attempts to influ-
ence the assignment of mason -tending forklift
work, the Board should issue a broad award to em-
ployees represented by the Laborers on jobssites
throughout the State of Wisconsin or alternatively
to jobs involving mason-tending forklift work
where the Employer is the masonry subcontractor
on construction projects in the State of Wisconsin.
The Laborers contends that the Board should grant
the Employer's request for a broad order in view
of the longstanding, history of this dispute and the
evidence that the dispute will recur. Contrary to
the Employer's and the Laborers' contentions, we
conclude that a broad order is not warranted.
The Operating Engineers filed a grievance con-
cerning the disputed work. The Operating Engi-
neers did not engage in threats of picketing or
picketing; rather, it was the Laborers that threat-
ened to picket and did picket to protest the reas-
signment of the disputed work to employees repre-
sented by the Operating Engineers.
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 Krall's Masonry, Inc. represented
by Laborers' International 'Union of North Amer-
ica, Local 1359 are entitled to perform the work of
operating forklifts used in connection with Krall's
Masonry, Inc.'s masonry work at the Marathon
County, Health Care Center, Wausau, Wisconsin
jobsite.