Masonry Magazine February 1992 Page. 50
tween two rival groups, and that there is reasonable cause to believe that the Laborers used proscribed means to enforce its claim to the disputed work.
Schwendener, Albin, and Laborers have stipulated, and the letter from the joint grievance committee shows that there is no agreed method for voluntary resolution of the dispute to which all parties, including the Engineers, are involved.
Based on our findings above, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and that there exists no 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 affirmative award of the 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 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
Albin has a current contract with the Laborers covering, inter alia, tending materials, "whether by bucket, hod, wheelbarrow, buggy, or any motorized unit... bobcats and uniloaders for cement masons and concrete contractors, forklifts for brick masons and/or any other machine which which replaces the wheelbarrow or buggy." Albin, the Employer that controls the assignment of the disputed work, has no collective-bargaining agreement with the Engineers. We therefore find that this factor favors an award of the disputed work to employees represented by the Laborers.
2. Company preference and past practice
The Employer prefers to use employees represented by the Laborers to perform the work in dispute. Keith Albin testified that his company has exclusively used employees represented by the Laborers to operate the Lull forklift. Accordingly, we find that employer preference and past practice favors an award to employees represented by the Laborers.
3. Area and industry practice
Keith Albin testified that 80 percent of the mason contractors use laborers to operate forklift trucks for carrying bricks. Schwendener Executive Vice President Chambers' testimony, however, reveals that Schwendener has customarily had its employees represented by the Engineers operate the Lull forklift on construction jobs in which it performed masonry work. No other evidence on this factor was presented by the parties. We find from the foregoing that the factor of area and industry practices is inconclusive and does not favor an award to employees represented by either union.
4. Relative skills
The record indicates that operation of the Lull forklift requires no license, certification, or particular skill and relatively little training, and that both groups of employees are equally capable of performing the disputed work. We therefore find that this factor does not favor either group of employees.
5. Economy and efficiency of operations
The Employer testified that efficiency is the chief reason that laborers run the forklift. In this regard, the Employer stated that employees represented by the Laborers are more efficient because they work 8 hours a day, including times when the forklift is idle, doing other job tasks such as digging, sweeping, and shoveling. In contrast, employees represented by the Engineers have restrictive work rules that require a full day's pay even if the equipment is run for only 2 hours, and that prohibit them from engaging in laborers' work. Accordingly, we find that the factor of economy and efficiency of operations favors an award of the disputed work to employees represented by the Laborers.
Conclusions
After considering all the relevant factors, we conclude that employees represented by the Laborers are entitled to perform the work in dispute. We reach this conclusion by relying on the factors of the collective-bargaining agreement, the Employer's preference and past practice, and the economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by the Laborers, not to that Union or its members.
Scope of the Award
The Laborers requests, with the concurrence of Albin and Schwendener, that the Board issue a broad work award on behalf of the Laborers proscribing coer coercive claims by the Engineers in a geographical area equal to the territorial jurisdiction of the two competing labor organizations. It contends that such a broad award is necessary to avoid similar jurisdictional disputes.
The Board has customarily declined to grant an areawide award in cases such as this in which the charged party represents the employees to whom the work is awarded and to whom the employer contemplates continuing to assign the work." Accordingly, in the circumstances of this case we find no warrant for granting a broad award. Therefore, 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 following Determination of Dispute.
Employees of Albin Masonry, represented by Construction and General Laborers, District Council of Chicago and Vicinity, affiliated with laborers International Union of North America, AFL-CIO, are entitled to operate the Lull forklift at the nursing home construction project on Remington Drive in Bolingbrook. Illinois.
Dated, Washington, D.C. August 27, 1991
James M. Stephens,
Mary Miller Cracraft,
John N. Raudabaugh.
(SEAL) NATIONAL LABOR RELATIONS BOARD
Chairman
Member
Member
"Because the Engineers did not restrict its conduct to filing a grievance under the signatory clause of its contract with Schwendener but made claims for the work both to Albin and Schwendener, and backed the claims up with threats, Chairman Stephens finds this case to be distinguishable from Laborers Local 731 (Slattery Associates), 298 NLRB No. 111 (June 18, 1990), in which he dissented from the majority's finding that the mere filing of a grievance under such a clause constitutes a competing claim for the assigned work.
"As noted, the Engineers submitted a letter to the Regional Director 1 day before the instant hearing, stating that it disclaims any interest in having its members perform as employees of Albin, but reserves its right to pursue its subcontracting grievance against Schwendener. The Regional Director's response to the letter was to notify the parties that the hearing would be held as scheduled. We find that this letter is ineffective as a disclaimer because it disclaims the work only insofar as the Engineers sought to have employees it represents perform the work as employees of Albin. It does not eschew interest in the work if performed by another employer, including Schwendener. Indeed, in light of the joint grievance committee's informing it that the issue was not eligible for resolution under the grievance procedure, the Engineers' reservation of the right to pursue its subcontracting grievance against Schwendener must be deemed to be a continuing claim for the work with respect to Schwendener and any employer other than Albin that Schwendener might contract with to perform the work.
See Laborers Local 22 (AGC of Mossochusetts), 283 NLRB 605, 608 (1987), in which the Board restated the standard for issuing such broad awards: "[T]here are two prerequisites for a broad, areawide award. First, there must be evidence that the disputed work has been a continuous source of controversy in the relevant geographic area and that similar disputes may recur. Second, there must be evidence demonstrating that the charged party has a proclivity to engage in unlawful conduct in order to obtain work similar to the work in dispute, [Emphasis in original, citations omitted.]
In this case, employees represented by the Laborers had been assigned the work from the outset, and their conduct was aimed at retaining the work in the face of the Engineers' demands.