Masonry Magazine October 1982 Page. 33
Dated, Washington, D.C. July 22, 1982
John R. Van de Water, Chairman
Robert P. Hunter, Member
NATIONAL LABOR RELATIONS BOARD
SEAL
MEMBER FANNING, dissenting:
Contrary to my colleagues, I would not determine the dispute herein. I find that all parties are bound to abide by the work award of the Joint Conference Board (JCB). Accordingly, as there exists an agreed-upon method for the voluntary settlement of this jurisdictional dispute, the notice of hearing sho should be quashed.
The facts and the contentions of the parties regarding the agreed-upon method of settlement are fully set forth by my colleagues. Briefly, the Engineers contends that all parties have obligated themselves to abide by the awards of the JCB. Contrarily, the Employer and the Laborers assert that they are not bound to the decisions of the JCB. They argue that, by virtue of becoming obligated to the dispute resolution procedures of the collective-bargaining agreement between the Laborers International and the Mason Contractors Association of America (MCAA), their commitment to be bound by decisions of the JCB has been superseded and extinguished.
First, assuming-as do my colleagues-that all parties herein have committed themselves, to the use of JCB for the resolution of jurisdictional work disputes, I would not find that the existence of a second "equally binding yet conflicting" work dispute pro-
Engineers, however, the operating engineers' work was not so limited. In addition, employees represented by the Engineers are employed on the basis of a guaranteed 8-hour workday: the Laborers work rules contain no such restriction. According to the record, employees represented by the Engineers must be paid for the entire day once they have commenced the job, regardless of inclement weather. Therefore, these factors in combination favor awarding the work to employees represented by the Laborers.
5. Joint Conference Board determinations
In certain prior disputes involving the operation of a forklift on other sites involving other employees, the JCB has awarded the disputed work to the Engineers over the Laborers. In addition, submission of the instant dispute to the JCB resulted in a work award for the Engineers. Nevertheless, although JCB decisions awarding the disputed work to employees represented by the Engineers may be a factor to be considered, they are not controlling because there is no evidence in the record explicating the factors relied on by the JCB in reaching its determinations which would enable us to determine the degree of deference that these determinations should be accorded. Therefore, this factor does not favor an award to employees represented by either union.
6. Employer preference
The Employer has assigned the disputed work to employees represented by the Laborers and has expressed its preference that the disputed work be performed by them. Employer preference therefore favors an award to employees represented by the Laborers.
7. Job impact of the award
In its brief to the Board, the Engineers contends that an award of the disputed work in favor of the Laborers would destroy the Engineers' bargaining unit completely, but would not have a destructive effect on employees represented by the Laborers. Inasmuch as the Employer had never used the forklift previously on this project and employees represented by the Engineers had not been working for the Employer on the project, we find that the Engineers has no grounds for arguing that an award contrary to its interests would result in the complete displacement of employees it represents.
Conclusion
Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that employees who are represented by the Laborers are entitled to perform the work in dispute. In making this determination, we are awarding the work in question to the employees of D. H. Johnson Company who are represented by the Laborers, but not to that Union or its members. The present determination is limited to the particular controversy 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 D. H. Johnson Company who are represented by Construction and General Laborers Local 118, Laborers' International Union of North America, AFL-CIO, are entitled to perform the work of operating the forklift at the 900 East Centennial apartment construction project in Mount Prospect, Illinois.
2. International Union of Operating Engineers, Local 150, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require D. H. Johnson Company 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 150, AFL-CIO, shall notify the Regional Director for Region 13, in writing, whether 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 determination.
11. International Brotherhood of Boilermakers, Iron Ship Builders, Forgers and Helpers, Local Union No. 72, AFL-CIO, 247 NLRB 73, 75 (1980).