Masonry Magazine January 1972 Page. 35
MCAA Information
(Continued from page 8) advised all parties that the work in dispute was to be assigned to the Carpenters. On March 12, before the award had been complied with, a representative of Hahn called Felix Espinosa of Respondent Council, asked him if he were aware of the award, and upon receiving an affirmative reply also asked Espinoza what the Laborers would do if Hahn used its carpenters to perform the disputed work as directed by the Joint Board. Espinoza replied that he would remove all laborers from the job and would file charges with the National Labor Relations Board for money due the laborers who were entitled to the work. Hahn, as well as Masonry Builders, employed laborers represented by Respondent on the jobsite.
B. The Work in Dispute
The work in dispute involves the erection and dismantling of scaffolding standing 14 feet or higher.
C. The Contention of the Parties
As to the merits of the dispute, the only issue now before us, Laborers contends that the evidence abundantly supports the assignment of the work to employees it represents. Though Carpenters did not enter an appearance at the hearing, it transmitted its position by letter to the Board, opposing the assignment of the work to Laborers. The Employer, Masonry, supported the Laborers' claim to the disputed work.
D. Applicability of the Statute
Before the Board may proceed with a determination of a 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. Under settled Board policy, improper pressure by a union other than the one which has been assigned the work is not necessarily a prerequisite to the existence of a 10(k) dispute. As it appears from the record that Laborers threatened to pull its men off the job if the Employer awarded the scaffolding work to Carpenters, pursuant to Carpenters claim, there is reasonable cause to believe both that an object of Laborers action was to force the Employer to continue to assign all of the disputed work to individuals represented by Laborers and that a violation of Section 8(b) (4) (D) has occurred. The dispute is therefore properly before the Board for determination.
E. Merits of the Dispute
There is no claim by either union, nor does the record indicate, that any special skill or training is required to erect and dismantle scaffolding over 14 feet high, or that either of the competing groups of employees is more capable than the other of performing the disputed work. There is no certification of bargaining representative that can be said to apply to any of the employees involved in this dispute. There are other factors, however, which we find persuasive in making our determination in this case:
1. Collective-Bargaining Agreements
The Employer subcontractor, Masonry Builders, Inc., as a member of Mason Contractors Exchange of Southern California, has had a series of collective-bargaining agreements with the Laborers. These agreements have provided that scaffolding was the work of laborers. Masonry Builders, Inc., has had no contractural relations with, and has no employees represented by, the Carpenters. In addition, contracts between various employer associations and locals of the Laborers Union in 12 counties of Southern California describe the erection and dismantling of scaffolds 14 feet or higher as being within the jurisdiction of the Laborers.
2. Company and Industry Practice
The Employer (Masonry Builders, Inc.) has consistently assigned the disputed work to employees represented by Laborers. As indicated, Masonry Builders has never assigned this work to Carpenters. Much testimony was adduced to show that in the Southern California area, as well as elsewhere, it is long-established industry practice for laborers to perform this work.
3. Efficient Operation of the Employer's Business
The laborer's duties encompass all work necessary to assist the bricklayers, such as the mixing of mortar, carrying brick and block to the masons, cleaning up excess brick and hauling it away, and spotting trucks delivering sand and cement. The scaffolding work is regarded as a regular part of the laborer's function in assisting the masons. Accordingly employment of Carpenters to perform this segment of laborer's work would be unduly disruptive of a continuing work process. Furthermore, it is clear that the laborers are capable of performing the work in dispute to the Employer's satisfaction.
4. Joint Board Award
Although the Joint Board decision awarding the disputed work to employees represented by the Carpenters may be a factor to be considered, it cannot be controlling, since as found by the United States Court of Appeals for the Ninth Circuit, supra, all of the parties herein had not agreed to be bound by the decision of the Joint Board.
5. Conclusion
In view of all the foregoing, particularly the evidence as to area practice, the Employer's longstanding assignment, and the collective-bargaining agreement between Masonry Builders, Inc., and Laborers Local 585, we shall determine the jurisdictional dispute herein by awarding the disputed work to employees represented by Laborers. Our determination is limited to the particular controversy which gave rise to this proceeding. In making this determination, the Board is assigning the disputed work to employees represented by Laborers Local 585, but not to that Union or its members.
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 hereby makes the following determination of dispute: Employees of Masonry Builders, Inc., who are currently represented by Southern California District Council of Laborers and Laborers International Union of North America, Local 585, are entitled to perform the work of erecting and dismantling scaffolding standing over 14 feet or higher. Dated, Washington, D.C., Dec. 8, 1971 Edward B. Miller, Chairman John H. Fanning. Member Howard Jenkins, Jr., Member NATIONAL LABOR RELATIONS BOARD (SEAL) National Press, Incorporated, 156 NLRB No. 26, and Pulitzer Publishing Company, 187 NLKB No. 35. masonry January, 1972 35