The Henley-Lundgren Co.

I)8D(ISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Local Union No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America and The Henley- Lundgren Company' and Massachusetts Laborer's District Council. Case I CD-566 July 10, 1979 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS PENEI.ILO, MURPIIY, ANI) TRUSDAIF This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by The Henley-Lundgren Company, herein called the Employer, alleging that Teamsters Local Union No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, herein called Teamsters, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requir- ing the Employer to assign certain work to its mem- bers rather than to employees represented by Massa- chusetts Laborers' District Council, herein called Laborers. Pursuant to notice, a hearing was held before Hear- ing Officer Avrom J. Herbster on April II and 12, 1979. The Employer and Teamsters appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Laborers, although notified of the hearing, did not appear. Thereafter, the Employer, Teamsters, and Laborers filed briefs.2 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 rul- ing made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding,' the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The Employer and Teamsters stipulated, and we find, that the Employer, a Massachusetts corporation ' The name of the Employer appears as amended at the hearing. 2 Teamsters, by letter dated May 9. 1979. protested the filing of a brief by Laborers because Laborers did not appear at the hearing and assertedly was attempting "to give evidence in its brief of a matter of fact as testified to at the trial." Teamsters also contends that it did not receive Laborers' brief until 7 days after its mailing. We shall consider Teamsters' letter as a motion to strike Laborers' brief. We hereby deny the motion as lacking in meril. 3 The Employer has requested oral argument. This request is hereby de- nied, as the record and the briefs adequately present the issues and the positions of the parties. with its principal place of business in Shrewsbury, Massachusetts, is engaged in the business of general construction and in the manufacture and supply of asphalt-concrete products. During the past year the Employer purchased goods and materials from out- side the Commonwealth of Massachusetts valued in excess of $50,000. The Employer and Teamsters also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein.4 II. HF I.ABOR OR(iANI/AI()ONS INVOI.VEI) The Employer and Teamsters stipulated, and we find, that Teamsters and Laborers are labor organiza- tions within the meaning of Section 2(5) of the Act.5 II1l. The Dispute A. Background and Facts The Employer's premises in Shrewsbury, Massa- chusetts, consist primarily of an office building with a garage and storage area in the rear and a carpenter's shop and asphalt plant within a yard area. The Em- ployer employs five employees represented by Team- sters who operate trucks transporting raw materials to the plant and asphalt to construction sites. It also em- ploys three other employees represented by Team- sters under a separate plant agreement. These em- ployees operate plant machinery, drive front-end loaders, and generally maintain the yard. Addition- ally, the Employer has employees represented by La- borers who, inter lia, perform manual work at con- struction sites, including assisting carpenters at the jobsite. On occasion, carpenters working with labor- ers at a jobsite must return to the Shrewsbury facility to perform work in the carpenter's shop similar to that which they perform at a jobsite. When working in the shop, the carpenters are usually assisted by a carpenter tender. The carpenter tender will move lumber by hand, treat wooden forms used in the pouring of concrete, and otherwise assist the carpen- ters in the performance of their work. On February 12, 1979, a Teamsters business agent protested to the Employer's sales manager and paving superintendent that the carpenter-tending work at the Employer's Shrewsbury location was being per- formed by an employee represented by Laborers 'See Teamsters Loaul Union No. 170, affiliated ith The International Brotherhood of Teamsier., Chauffeurs, Warehouserren and Helpers of America (The Henlev Lundgren Co.), 240 NLRB No. 91 (1979). where the Board as- serted jurisdiction over the Employer in a case involving the same parties which arc involved herein. Ibid. 243 NLRB No. 63 384 TEAMSTERS LOCAL UNION NO. 170 rather than by an employee represented by Team- sters. The business agent stated that unless the work was assigned to an employee represented by Team- sters, Teamsters would picket the Employer's facility. This threat was reiterated by the business agent on several other occasions during the month of Febru- ary. The Employer, however, refused to assign the work requested to employees represented by the Teamsters. Thereafter, from February 20 through March 8, 1979, Teamsters engaged in picketing at the Employer's facility. B. The Work i Dispute The work in dispute involves carpenter-tending work performed at the Employer's Shrewsbury, Mas- sachusetts, location, incidental to work done by car- penters in and near the carpenter's shop, including stacking and moving lumber by hand, stripping and cleaning wooden forms used in the pouring of con- crete, oiling and banding together these forms, clean- ing and organizing the carpenter's shop, and, gener- ally, assisting the carpenters in the performance of their work.6 C. Contentions of the Parties The Employer contends that there is reasonable cause to believe that Teamsters violated Section 8(b)(4)(D) of the Act and that there is no agreed-upon method for the voluntary adjustment of the dispute. The Employer further contends that the work in dis- pute should be awarded to its employees represented by Laborers. It asserts that the collective-bargaining agreements involved and considerations of the Em- ployer's preference and past practice, relative skills, and economy and efficiency of operations favor an award of the disputed work to these employees. La- borers' position, as expressed in its brief, is in accord with that of the Employer. Teamsters takes the posi- tion that its collective-bargaining agreement with the Employer, and the factors of the Employer's past practice, industry practice, and economy and effi- ciency of operations favor an award of the disputed work to employees represented by it. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section IO(k) of the Act, it must be satisfied that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated and 6 There is no dispute concerning the work involved in transporting lumber by means of frklift, which work has been assigned by the Employer to employees represented by Teamsters. that there is no agreed-upon method for the voluntary adjustment of the dispute. As noted above, it is un- controverted that Teamsters demanded the disputed work, threatened to strike in support of its demand, and subsequently did strike. Based on the foregoing and the record as a whole, we find that Teamsters sought to force or require the assignment of the work in dispute to employees represented by it rather than to employees represented by Laborers. Accordingly, we find reasonable cause exists to believe that Team- sters violated Section 8(b)(4)(D) of the Act. No party contends, and the record discloses no evi- dence showing, that an agreed-upon method for the voluntary adjustment of this dispute exists to which all parties are bound. Accordingly. we find that the dispute is properly before the Board for determina- tion under Section 10(k) of the Act. E. Merits of' the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors.7 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors in- volved in a particular case.' The following tactors are relevant in making the determination of the dispute beftre us: 1. Certifications and collective-bargaining agreements Neither of the Unions involved herein has been certified by the Board as the collective-bargaining representative tor a unit of the Employer's employees. The Employer currently has collective-bargaining agreements with both Teamsters and Laborers. An examination of its plant agreement with Teamsters, on which Teamsters bases, in part, its claim to the disputed work, discloses that the recognition of Teamsters extends only to employees performing work at the plant, transporting products to and from the plant, or performing yard maintenance work. Thus, the contract provides, in relevant part: "This agreement shall apply to all work performed by the Employer at its asphalt plants within the Common- wealth of Massachusetts including all yard mainte- nance .... " (Emphasis supplied.) It also provides that "any or all work that may be part of the maintaining and running of the plant will be manned by Team- I '.L.R. B. v. Radio d Television Broadcast Engineers Union. Local 1212, International Brotherhood of Electrical Workers. A Fl. (0 IColumbia Broad- srrting Ssrem], 364 U.S. 573 11%91) Internatuioinl Asociattion af Machiniss, Iodge .Vo 1'43. .4 FL CIO J .4. Jones Consiruction Co(mpansv 135 NL.RB 1402 (1962. 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sters ... including the transporting of products to and from the plant and/or company job sites for the com- pany use." (Emphasis supplied.) The contract does not specifically list "carpenter tender" as a covered classification, nor does it specifically refer to the work in dispute. An examination of the Employer's collective-bar- gaining agreement with Laborers, on the other hand, discloses that the recognition of Laborers extends to all employees in certain enumerated categories of work, including "stripping and dismantling concrete form work; ... handling of lumber and other building materials; ... [and] erection and dismantling of wood or steel forms for concrete or asphalt curbing." It also provides an hourly rate for employees within the spe- cific classification of "carpenter tender." We find that Laborers' collective-bargaining agreement with the Employer specifically includes the work in dispute, and, therefore, the factor of collective-bargaining agreements favors an award of the disputed work to employees represented by Laborers. 2. Employer's past practice and preference The evidence with respect to the Employer's past practice is conflicting. The Employer's vice president and paving department manager and its sales man- ager and paving superintendent both testified that since they began working for the Employer, in 1966 and 1968, respectively, the disputed work exclusively had been assigned to and performed by employees represented by Laborers. The Employer's carpenter foreman, however, testified that at various times over a 10-year period prior to 1968 or 1969 an employee represented by Teamsters had assisted the carpenters in the carpenter's shop. Additionally, an employee represented by Laborers testified that since 1974 he has spent varying amounts of time each year in the carpenter's shop assisting the carpenter. An employee represented by the Teamsters testified that from about 1957 until his employment ceased in about No- vember 1976, he assisted the carpenter in the carpen- ter's shop, and during such time he never saw any employee represented by Laborers assisting the car- penter. It appears from the record that since Novem- ber 1976 all carpenter-tending work has been per- formed at the Employer's Shrewsbury location by employees represented by Laborers. Therefore, while not entirely clear from the record, it appears that the disputed work at various times has been assigned to and performed by employees represented by Laborers as well as by those represented by Teamsters. Accord- ingly, the factor of the Employer's past practice is not determinative of the instant dispute. The Employer has expressed its preference that the disputed work be awarded to employees represented by Laborers rather than to employees represented by Teamsters. While we do not afford controlling weight to this factor, we find that it tends to favor the award of the disputed work to employees represented by La- borers. 3. Industry practice The Employer presented no evidence with respect to industry practice. Teamsters presented general tes- timony by its former business agent to the effect that Teamsters jurisdiction over work similar, in part, to the work in dispute herein has been recognized by "trades throughout the country." Teamsters, how- ever, presented no evidence with respect to employers in the industry showing specific assignments of work similar to that in dispute herein to employees repre- sented by it. Accordingly, we find that this factor is not determinative. 4. Relative skills It is undisputed that the employees represented by Laborers, to whom the work in dispute is presently assigned, possess the requisite skills to perform such work in a manner satisfactory to the Employer. Addi- tionally. although the disputed work does not appear to require a high degree of skill, the record reveals that if the work were assigned to employees repre- sented by Teamsters, some training would be neces- sary. This factor therefore tends to favor the award of the disputed work to employees represented by La- borers. 5. Economy and efficiency of operations The Employer presented testimony that it would be more efficient to assign the work to employees repre- sented by Laborers rather than to employees repre- sented by Teamsters. In this regard, the record dis- closes that when employees represented by Laborers perform carpenter-tending work, they work with the carpenter both at the jobsite and at the carpenter's shop, traveling with the carpenter between these loca- tions. Thus, a carpenter reporting to the carpenter's shop from the jobsite is able to start working immedi- ately. However, if the work in dispute were assigned to a teamster, the carpenter would have to spend time locating a teamster to assist him, necessitating that the teamster leave other work at the plant which he may have been performing and thereby disrupting operations. Teamsters presented no evidence showing that it would be at least as economical and as efficient to assign the work in dispute to employees represent- ed by it. The factors of economy and efficiency of operations, therefore, favor an award of the disputed work to employees represented by Laborers. 386 TEAMSTERS I.OCAL UNION NO. 170 Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that employees who are represented by Laborers are entitled to perform the work in dispute. We reach this conclusion upon the following facts: The Employer's collective-bargaining agreement with Laborers specif- ically includes the work in dispute; the Employer's present assignment is not clearly inconsistent with its past practice or industry practice and is consistent with its preference; the employees represented by La- borers posses the requisite skills to perform the dis- puted work; and such assignment results in greater economy and efficiency of operations. In making this determination, we are assigning the disputed work to employees represented by Laborers, but not to Laborers or its members. The present de- termination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: I. Employees of The Henley-Lundgren Company who are represented by Massachusetts Laborers' Dis- trict Council are entitled to perform capenter-tending work at the Employer's Shrewsbury, Massachusetts, location incidental to work done by carpenters in and near the carpenter's shop, including stacking and moving lumber by hand, stripping and cleaning wooden forms usued in the pouring of concrete, oiling and banding together these forms, cleaning and orga- nizing the carpenter's shop, and, generally, assisting the carpenters in the performance of their work. 2. Teamsters Local Union No. 170, a/w Interna- tional Brotherhood of Teamsters. Chauffeurs, Ware- housemen and Helpers of America, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require The Henley-Lundgren Company to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Teamsters Local Union No. 170, a/w International Brotherhood of Teamsters Chauffeurs. Warehousemen and Helpers of America, shall notify the Regional Director for Re- gion 1, in writing, whether or not it will refrain from forcing or requiring the Employer, by means pro- scribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 387