Teamsters, Warehousemen, Garage Employees & Helpers Union Local 839

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters, Warehousemen, Garage Employees and Helpers Union Local 839, affiliated with the In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Shurtleff & Andrews Constructors and Foley-Wismer & Becker and International Union of Operating Engineers, AFL-CIO, Local 370. Case 19-CD-347 and 19-CD-348 May 1, 1980 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS JENKINS, PENELLO, AND TRUESDALE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Shurtleff & Andrews Con- structors, herein called Shurtleff, and by Foley- Wismer & Becker, herein called Foley, alleging that Teamsters, Warehousemen, Garage Employees and Helpers Union Local 839, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and elpers of America, herein called Teamsters, violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requir- ing the Employers to assign certain work to em- ployees represented by it rather than to employees represented by the International Union of Operat- ing Engineers, AFL-CIO, Local 370, herein called Operating Engineers. Pursuant to notice, a hearing was held before Hearing Officer Joyce K. Lauritsen, on December 3 and 4, 1979.1 All parties appeared and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employers, the Teamsters, and the Operating Engineers filed briefs which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the basis of the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYERS The parties further stipulated, and we find, that Foley is a joint venture engaged in construction at the Hanford Nuclear Reservation. During the past All dates herein are in 1979, unless therwise idicted 249 NLRB No. 10 year, a representative period, its gross volume of business exceeded $500,000, and its purchases of goods from outside the State of Washington ex- ceeded $50,000. The parties stipulated, and we find, that Shurtleff is a State of Utah corporation engaged in steel con- struction work at the Hanford Nuclear Reserva- tion, Richland, Washington. During the past year, a representative period, its gross volume of busi- ness exceeded $500,000, and its purchases of goods from outside the State of Washington exceeded $50,000. The parties also stipulated, and we find, that both Employers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Teamsters and the Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In August 1976, Shurtleff had a contract for the erection of steel on several large buildings in con- nection with the construction of Washington Nu- clear Power Units (herein WNP) I and 4 on the Hanford Nuclear Reservation near Richland, Washington. Shurtleff assigned to a single employ- ee, represented by the Operating Engineers, the op- eration of cranes, cherrypickers, and hydra cranes used to pull floats, flatbed trailers, and other trail- ers at the jobsite. In April, Foley had a contract for the assembly and connection of turbine gener- ators for WNP Units 1 and 4, and made the same assignment to an employee represented by Operat- ing Engineers. More specifically, Shurtleff has a crane of about 15-ton capacity, with large rubber wheels and four- wheel drive, which it uses for various purposes, in- cluding pulling Shurtleff's two 40-foot flatbed trail- ers, usually carrying equipment from its storage yard to the construction site. Foley has two similar cranes of about 15-ton capacity, which it uses for various purposes, including pulling Foley's three 40-foot flatbed trailers. Shurtleff and Foley have also used cranes to pull trailers of other sizes and each has regularly assigned an employee represent- ed by Operating Engineers to operate the cranes. On November 1, Teamsters threatened to strike Shurtleff if a composite crew of an employee rep- resented by Teamsters and an employee represent- ed by Operating Engineers was not assigned when- TEAMSTERS, WAREHOUSEMEN. GARAGE EMPLOYEES AND HELPERS UNION LOCAL 839 177 ever cranes were used to pull floats, flatbed trail- ers, and other trailers, with the employee repre- sented by Operating Engineers actually operating the crane. On November 2, Teamsters struck and picketed Shurtleff and continued such action until November 12. On November 6, Teamsters made the same threat to Foley. Teamsters later gave the parties assurances that it would not engage in fur- ther picketing "in the foreseeable future." B. The Work in Dispute The dispute concerns a claim that when cranes, cherrypickers, and hydra cranes are used to pull floats and flatbed trailers or other trailers at the Employers' construction projects at the WNP Units I and 4, on the Hanford Nuclear Reserva- tion, Richland, Washington, a composite crew composed of an operating engineer and a teamster be assigned with the operating engineer operating the crane, cherrypicker, hydra crane, or forklift- and the teamster performing hookup work; guiding and signaling work; performing trailer mainte- nance; and loading, unloading, and giving load tie- down assistance. C. Contentions of the Parties Operating Engineers and Teamsters moved that the notice of hearing be quashed on the grounds that there is no jurisdictional dispute between them, and that, even if there is a dispute, the two Unions have resolved the dispute on the basis that a composite crew consisting of an employee repre- sented by each Union would be assigned when cranes are used to pull trailers. Operating Engi- neers and Teamsters agree that the employee repre- sented by Operating Engineers will actually drive or operate the crane. Teamsters does not seek this work. Instead, as noted above, Teamsters claims for its members the hookup work, guiding and sig- naling work, trailer maintenance functions, and loading, unloading, and load tiedown assistance functions. No employees represented by Operating Engineers perform the work sought by Teamsters- represented employees. Instead, this work is per- formed by the members of the craft with jurisdic- tion over the particular material to be loaded onto the trailer at that particular time. To the contrary, the Employers argue (1) that there is a dispute between the employees represent- ed by the two Unions concerning whether or not a composite crew will be assigned when a crane pulls a trailer; (2) that the Employers are not bound by any alleged resolution of the dispute be- tween the Unions; and (3) on the merits, only an employee represented by Operating Engineers should be used when a crane pulls a trailer. D. Applicablitity of the Statute We are of the opinion that the record in its en- tirety does not establish that a jurisdictional dispute exists herein which is cognizable under Section 10(k) of the Act. There is no substantial evidence that the two groups of employees before us are contending for the work described above. Thus, Teamsters has ex- plicitly stated it has no interest in the work as- signed to employees represented by Operating En- gineers, i.e., the actual operation of the crane, and the latter organization has claimed no work other than the operation of the crane which its employ- ees have traditionally performed. There is therefore no overlapping area of dispute between these two sets of employees. We find that whether or not an employee represented by Teamsters should be as- signed to the cranes when they pull trailers does not involve a dispute between Teamsters and Oper- ating Engineers. The Board has repeatedly held that Sections 8(b)(4)(D) and 10(k) of the Act were intended to deal with disputes between two or more competing employee groups claiming the right to perform cer- tain tasks, and not, as here, with disputes between a union and an employer where no such competing claims between rival groups of employees are in- volved. 2 Accordingly, we find herein that there is no ju- risdictional dispute within the meaning of Section 8(b)(4)(D) and Section 10(k) of the Act. We shall therefore quash the notice of hearing. ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed. MEMBER PENELLO, dissenting: 2 See Hoisting and Portable Engineers, Local No. 450 (United Engineers d Constructors, Inc), 186 NLRB 835 (1970); Highway Truckdrivers A Helpers. Local 107. InternatioJal Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, Independent (Safeway Stores Incor- porated), 134 NLRB 1320 (1961). The two cases cited by our dissenting colleague to support his view that a jurisdictional dispute exists here are clearly distinguishable. From the dissent's own recitation of the facts of those cases, it is clear that the unions disclaiming the work there did, in fact, at one time perform that work. This fact was a predicate to the Board's determining in each case that the disclaimer was ineffective and that a genuine jurisdictional dis- pute still existed notwithstanding the disclaimer. Here, by contrast, Oper- ating Engineers has not done, and does not seek to do, that work which Teamsters is seeking. Hence, there is no jurisdictional dispute between these two groups of employees. Whether there exists a cognizable dispute between Teamsters and some other group of employees or whether Teamsters action has as a result the paying of two groups of employees for the work of one (as our dissenting colleague claims) and thus may be actionable under some other section of the Act are issues not framed before us in this proceeding. Rather, we simply find no jurisdictional dis- pute has been shown to exist here between Teamsters and Operating En- gineers. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unlike my colleagues, I find that this case in- volves a jurisdictional dispute between employees represented by Teamsters and employees represent- ed by Operating Engineers. As set forth below, the dispute centers around the question of whether the work of moving trailers by cranes at the Employ- er's jobsite will be performed only by an employee represented by Operating Engineers or whether an employee represented by Teamsters will also be used to accomplish the overall task. Shurtleff has used a single employee represented by Operating Engineers to perform the duty of the operation of cranes, cherrypickers, and hydra cranes, to pull floats" flatbed trailers, and other trailers since it first received the steel erection con- tract at WNP Units 1 and 4 in August 1976. Foley made the same assignment in April 1979, when it received its contract for the assembly and connec- tion of turbine generators for WNP Units I and 4. In November, Teamsters asserted that employees it represented were entitled to some of the work in- volved when cranes were used to pull floats, flat- bed trailers, and other trailers, and it threatened to strike both employers if a composite crew consist- ing of an employee represented by it and one rep- resented by Operating Engineers were not assigned to replace the single employee represented by Op- erating Engineers. Both Employers refused to comply with this demand and Teamsters struck and picketed Shurtleff from November 2-12. Operating Engineers contends that there is no dispute between employees represented by it and the employees represented by Teamsters over the work in question, yet it strongly asserts that an em- ployee represented by it will at all times operate the crane, cherrypicker, or hydrocrane. Likewise, Teamsters states that it has no interest in the work currently performed by the employee represented by Operating Engineers. 3 This draws me to the conclusion that the instant case logically falls within the ambit of International Brotherhood of Electrical Workers, Local No. 610 (Landau Outdoor Sign Company, Inc.), 225 NLRB 320 (1976), in which the Board found that a jurisdictional dispute existed in analogous circumstances. The employer in Landau maintained approximately 160 billboards, and the work of dismantling existing signs and in- stalling new panels was assigned to employees rep- resented by the Sign Hangers. From 1959 to 1974, when existing panels were removed and new 3 It is not clear from the record that an employee represented by Teamsters would undertake any useful work, although Teamsters alleges that the employee would perform tasks which necessarily accompany the operation of the crane. However, such assistance work is currently being performed satisfactorily and without objection by employees represented by crafts with jurisdiction over the material that is loaded onto the trail- er. panels not immediately installed, those same em- ployees switched off the floodlights, a task com- pleted in a matter of seconds, until such time as the new panels were hung when the lights were switched on. In 1974, the IBEW advised the em- ployer that the work of turning floodlights off and on should be performed by electricians employed by the employer and represented by IBEW. The employer refused to make the new assignment. Sign Hangers disclaimed any interest in the disput- ed work and, in view of that alleged disclaimer, IBEW contended there was no jurisdictional dis- pute in the case. The Board rejected that argument, finding that the Sign Hangers purported disclaimer imposed no hardship and involved no sacrifice or "giving up" by the employees it represented. The Board noted that wages and other benefits were not reduced by reason of the Sign Hangers dis- claimer, for the employees' work was still essential- ly the same. Thus, the Board found the Sign Hang- ers purported disclaimer not effective to extinguish the jurisdictional dispute between the employees represented by that labor organization and employ- ees represented by IBEW. The Board made a similar finding earlier, in Local 1291, International Longshoremen's Associ- ation, AFL-CIO (Pocahontas Steamship Company), 152 NLRB 676 (1965). In that case, longshoremen represented by International Longshoremen's Asso- ciation (ILA) picketed to force the employer to change the assignment of the work of opening and closing hatches aboard its ships to themselves from the ships' crews, represented by the National Mari- time Union (NMU). The NMU then disclaimed in- terest in the work, and ILA argued that there was therefore no jurisdictional dispute. The Board found, however, that the monthly salary of the em- ployees originally assigned the work would not be diminished by the disclaimer as it was not possible to allocate part of their salary to the specific work of opening and closing hatches. The disclaimer im- posed no hardship or "giving up" by employees represented by NMU and did not therefore elimi- nate the fundamental jurisdictional dispute between seamen and longshoremen as to who would open and close ship hatches. I see the situation in this case as being essentially the same. Operating Engineers is in no way giving up the tasks employees represented by it currently perform in the operation of cranes to pull trailers at the jobsite, acceptance of a composite crew does not, therefore, involve any hardship or sacrifice in terms of work loss or compensation. As in Poca- hontas, if this purported "disclaimer" were effective it would result in payment for two groups of em- ployees, while only one group did the work. It has TEAMSTERS, WAREHOUSEMEN, GARAGE EMPLOYEES AND HELPERS UNION LOCAL 839 179 not been shown here that the Teamsters-represent- ed member of the crew would have any significant task to perform, the crane operation being under the sole jurisdiction of the employee represented by Operating Engineers, and the related work being satisfactorily performed without objection by the craft which loads the material onto the trailer. For these reasons, I would find that a jurisdic- tional dispute does exist between employees repre- sented by Teamsters and employees represented by Operating Engineers. I therefore think the Board should decide whether the dispute has been re- solved by a method agreed upon by all parties and, if it finds it has not, decide the dispute on the merits. In the circumstances here, however, it would serve no purpose for me to express my views on issues which my colleagues do not reach.