Masonry Magazine February 1987 Page. 49
We find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred which is not barred by Section 10(b) 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 jurisdicational 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 Construc- tion), 135 NLRB 1402 (1962).
The following factors are relevant in making the determination of this dispute.
1. Collective-bargaining agreements
Dentinger is a member of the Mason Contractors Association of America (MCAA). An agreement between MCAA and the La- borers International requires mason contractors to assign the tend- ing of masons in general to members of the Laborers. On 31 Au- gust 1984 Dentinger signed a short form agreement with the Laborers. Section 5.3 contains the classification "Forklift Opera- tor" and an accompanying wage rate.
Hutter is a party to the Fox Valley Contractors Association Agreement with various Laborers' locals which contains jurisdic- tional claims to mason-tending forklift work. Also, Hutter is a party to the Engineers Area II agreement, which sets forth the claim for the operation of "forklifts." An arbitrator found Hutter violated this contract by subcontracting the work in dispute to Dentinger because the latter did not have an agreement with the Engineers.
Evidence concerning this factor indicates that the forklift op- eration is within the work jurisdiction of both Unions. We there fore find that this factor does not favor an award to employees represented by either Union.
2. Company preference and past practice
Since 1975 Dentinger has assigned mason-tending forklift work to the Laborers on over 200 jobs and has expressed a preference to assign this work to the Laborers whenever possible. Although on two occasions Dentinger has assigned mason-tending forklift work to members of the Engineers, record testimony shows that the Engineers pressured the general contractor to have Dentinger change the assignment or lose the subcontract.
Accordingly, we find that Dentinger's preference and past practice favor the award to employees represented by the Labor- ers.
3. Area practice
Hutter indicates that if mason-tending forklift work were per- formed by individuals Hutter employed directly. Hutter's pref- erence would be, as its practice in most cases has been, to have the Laborers perform mason-tending forklift work. The practice of Hutter and Dentinger is consistent with the assignment of con- tractors doing masonry construction throughout Wisconsin. Fifty to 60 percent of general contractors performing masonry work in Milwaukee and its environs use Laborers to run their forklifts. In the remaining counties, 90 percent of masonry subcontractors as- sign their forklift work to Laborers. When an engineer has per- formed the disputed work, he has done so because he was already on the job and was not at the time needed to run other equipment.
Accordingly, we find that area practice favors an award to em ployees represented by the Laborers.
4. Relative skills
No special skills are required of the employees who operate the mason-tending forklift and members of both the Laborers and the Engineers are qualified to perform the work in dispute. Ac cordingly, we find this factor does not favor an award to employ ees represented by either Union.
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MASONRY JANUARY/FEBRUARY, 1987 49