Masonry Magazine August 1985 Page. 25
TRIPARTITE ARBITRATION
continued from page 21
The Collective Bargaining Agreements
The record establishes that for the three jobs involved in the instant proceedings, Dentinger was bound by the terms of collective bargaining agreements with both the Laborers and Engineers. The pertinent provisions of the respective provisions of the pertinent collective bargaining agreements are set forth in the fact section of this Award. It is clear to the undersigned that forklift operation is assigned by Contract to both Unions. The terms of the Engineers Contract are less specific as to the nature of the work, in that the Contract merely refers to forklift work, whereas, the wage appendix of the Laborers Contract provides specifically for a classification of mortar mixer and forklift operator.
The specificity, however, of the wage appendix inclusion in the Laborers Contract is not significant, in the eyes of the undersigned. Therefore, the undersigned concludes that since the disputed work is covered by the terms of both the Engineers and the Laborers Collective Bargaining Agreements, this factor does not favor an Award to employees represented by either Union.
Employer and Area Practice
The record evidence establishes that Dentinger, except for two occasions, has regularly assigned Laborers to forklift mason tending duties. The record evidence further establishes that this disputed work was assigned to Laborers in all but two of Dentinger's 150 jobs between the years 1975 and 1981. The record reveals that the two exceptions of Dentinger's assignment of the disputed work to the Laborers occurred in a 1976 job on South Division High School and in a September, 1980 job on the Walworth Wastewater project. The record further reveals that in both instances, Dentinger was advised by the prime contractor that he would be removed from the job if he did not put operating engineers on the job, the jobs having been picketed by the engineers as a result of Dentinger's work assignment.
The Engineers argue that the two foregoing instances establish area practice, particularly since, in the South Division job, the dispute was resolved by having a Dentinger employee carry dual membership in both the Laborers and Engineers Unions and that arrangement continued beyond the term of the South Division job.
Engineers further argue that in D. H. Johnson Co., 262 NLRB No. 120, the Board rejected at page 12 the ACEA argument that pressure by one Union requires a finding in favor of the other Union and/or the Employer. The undersigned has considered the foregoing argument of the Engineers that the Board rejected the ACEA argument that pressure by one Union requires a finding in favor of the other Union and/or Employer.
The undersigned has reviewed the decision of the NLRB in D. H. Johnson Co. at page 12, and finds nothing there to support the Engineers argument. A reading of the decision satisfies the undersigned that the Board in D. H. Johnson found that Company practice was a neutral factor not favoring an award to employees represented by either union, by reason of its conclusions that work had been assigned by that employer to both Laborers and Engineers in the past. There is nothing in the text of the decision which specifically rejects the proposition that practices arising out of coercion from one union are to be ignored. The record here clearly establishes the Dentinger practice of assigning the disputed work to the Laborers and, therefore, practice favors an Award to employees represented by the Laborers Union.
The undersigned further considers area practice and specifically finds that it is the practice within Area I which is controlling, and that any practices which might exist within Area II are not relevant to this dispute. Consequently, the undersigned looks to the record testimony and exhibits to determine what the prevailing practices are in Area I.
There is record testimony from Laborers business representatives that, based on their knowledge and experience of the Area I markets, that 95% or more of the mason tending forklift work performed in this area is performed by Laborers. The record also reveals, from the testimony of Dentinger, and from Employer Exhibit No. 13, that area practice of assigning mason tending forklift operation is to assign said work to employees represented by the Laborers. Employer Exhibit No. 13 is a listing of mason contractors and general contractors manning forklifts without assigning
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MASONRY-JULY/AUGUST, 1985 25