Masonry Magazine February 1987 Page. 47
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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NLRB AWARDS FORKLIFT OPERATION TO LABORERS INSTEAD OF ENGINEERS
282 NLRB No. 90
D-4194
Brookfield and Fond du Lac, WI
Cases 30-CD-116 and 30-CD-117
LABORERS INTERNATIONAL UNION
LOCAL 1086, AFL-CIO
and
BILL DENTINGER, INC.
HUTTER CONSTRUCTION COMPANY
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 139, AFL-CIO
DECISION AND DETERMINATION OF DISPUTE
The charges in this Section 10(k) proceeding were filed 23 September 1985 and 7 November 1985 by the Employers, alleging that the Respondent (Laborers Local 1086), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employers to assign certain work to employees it represents rather than to employees represented by Operating Engineers Engineers Local 139. The cases were consolidated and a hearing was held 18 December 1985 before Hearing Officer Kathleen L. Rupprecht.
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, finding them free from prejudicial error. On the entire record, the Board makes the following findings.
I. Jurisdiction
Bill Dentinger, Inc., a Wisconsin corporation, is a construction firm engaged in masonry subcontracting with its principal office in Brookfield, Wisconsin. It annually purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Wisconsin.
Hutter Construction Company, a Wisconsin corporation, is engaged in construction as a general contractor with its principal offices in Fond du Lac, Wisconsin, where it annually purchased and received goods and materials valued at more than $50,000 directly from suppliers located outside the State of Wisconsin.
The parties stipulate, and we find, that the Employees are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Laborers Local 1086 and Engineers Local 139 are labor organizations within the meaning of Section 2(5) of the Act.
II. The Dispute
# A. Background and Facts of Dispute
The State of Wisconsin awarded the Oshkosh, Wisconsin, Medium Security Prison project to Hutter Construction Company in July 1984. Bill Dentinger. Inc., Hutter's masonry subcontractor, assigned the mason-tending forklift work to employees represented by the Laborers.
David Waite, a business representative for the Engineers, F. William Harvat from Hutter, W. C. Dentinger, Jr., and several representatives of the Laborers discussed the assignment on 31 August 1984. Waite indicated that Dentinger's assignment to the Laborers was unacceptable to the Engineers, and suggested that Hutter could have its own employees perform mason-tending forklift work directly, or that Dentinger could become a party to the collective-bargaining agreement between the Engineers and the Associated General Contractors, Wisconsin Chapter (the Area II contract). Harvat stated that Hutter had no desire to perform the work directly. Dentinger agreed at the meeting to sign the Area II Agreement. However, the Engineers subsequently refused to provide Dentinger with the Area II contract because Dentinger was unwilling to assign the mason-tending forklift work to employees represented by the Engineers.
On 6 September 1984 the Engineers filed a grievance against Hutter as party to the Area Il contract, alleging that Hutter was in violation of the contract's subcontracting clause. On 29 July 1985 an arbitrator concluded that mason-tending forklift work was covered by the Area II contract and that the performance of that work by employees of a subcontractor not a party to the agreement violated the subcontracting clause. The arbitrator fashioned an "in-lieu-of work" remedy. A petition to vacate or modify the arbitrator's award filed 28 October 1985 by Hutter in the Federal District Court for the Eastern District of Wisconsin was still pending at the time of the instant hearing.
In the meantime, in April 1985 and again in September 1985, the Laborers notified Dentinger by letter that it would take legal and economic action against the subcontractor in furtherance of its claim for the mason-tending forklift work it had been assigned.
Faced with the Engineers' contractural demands, in early November Hutter asked Dentinger to change the mason-tending forklift assignment from the Laborers to the Engineers. On 5 November 1985 Dentinger wrote to the Laborers and notified it that an assignment change was going to be made and that a laborer would be laid off because of the change. About the same time Dentinger contacted the Engineers and inquired about an engineer being dispatched to man the forklift. He also again requested an Area II Engineers' contract be sent to him. Several days later Dentinger was notified that neither would be sent because Dentinger would not change its mason-tending forklift assignment to the Engineers.
On 7 November 1985 members of the Laborers picketed the main entrance to the prison project. There was a 1-day work stoppage.
MASONRY JANUARY/FEBRUARY, 1987 47