Masonry Magazine August 1985 Page. 27
Inter-Union Agreements
At the hearing the Engineers attempted to introduce into evidence Operating Engineer Exhibits 5A and 5B, which is a document purporting to be a memorandum of understanding between the International Union of Operating Engineers and the International Union of Laborers dated February 3, 1954. At page 596 of the transcript, the Arbitrator rejected the exhibit for lack of authentication and lack of proper foundation for its admission. Engineers in their brief argue that the foregoing memorandum supports its position that the work assignment should be made to employees represented by the Engineers. In view of the fact that the exhibit was never properly admitted into evidence in these proceedings, the undersigned would normally not consider the Operating Engineers argument in this respect.
There is, however, another document in evidence which treats the same memorandum. Employer Exhibit No. 8. Employer Exhibit No. 8 is the decision of the National Labor Relations Board in Market & Johnson, Incorporated (262) NLRB No. 118). The undersigned is satisfied that the reference at pages 17 and 18 of that decision is to the same memorandum of understanding between International Unions of both Operating Engineers and Laborers as the memorandum which has been rejected in these proceedings.
There, the NLRB held: "... Such an agreement does not carry significant weight in the absence of evidence that all parties have agreed to be bound by it. There is no evidence in the instant cases that the Employer has agreed to be bound by the memorandum. Moreover, we note that in spite of the agreement Laborers have continued to claim the disputed work with the apparent sanction of the Laborers International."
By reason of the foregoing record documentation with respect to the foregoing memorandum of understanding, the undersigned will consider the memorandum of understanding as part of this decision-making process, since it became part of the record upon admission of Employer Exhibit No. 8. The undersigned, however, has no basis to adopt any reasoning other than that set forth by the NLRB in Market & Johnson when it concluded that "accordingly, we attach no weight to the memorandum of understanding." Similarly, then, the undersigned concludes that the memorandum of understanding carries no weight in these proceedings.
Impartial Board Determinations
There is in the record evidence (Engineer Exhibit No. 4) which is the decision of the Impartial Jurisdictional Disputes Board that on the Racine Mall job the work in dispute is governed by the decision of record of November 11-23, 1907. Additionally, post hearing attached to its brief the Engineers have submitted a series of decisions from the IJDB, all assigning forklift work to Engineers. The undersigned has reviewed all of the awards, and notes that they all consist of brief letters which rely on either the 1954 agreement between the two Internationals, as discussed in the previous section of this Award, or a 1907 decision made by the American Federation of Labor.
None of the letters set forth any other factors as a basis for the IJDB award. The NLRB in Market & Johnson (supra) concluded that because the Employer is not obligated to submit any dispute to the IJDB, and because the decisions submitted are not binding on the Employer, the Board attaches no weight to said decisions in determining the award of the disputed work. Based on the foregoing decision of the NLRB, the undersigned likewise attaches no weight to the IJDB awards of this disputed work.
Employer Preference
The record, by the testimony of Dentinger, establishes that the Employer preference is to assign the disputed work to employees represented by Laborers. Furthermore, there is evidence in the record that establishes that the Bricklayers also prefer that the Laborers be assigned this work. Accordingly, it is concluded that this factor favors an award to employees represented by the Laborers Union.
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MASONRY-JULY/AUGUST, 1985 27