Teamsters Local 525

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chauffeurs, Teamsters, Warehousemen and Helpers of America, Local Union No. 525, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Tiger Stripers, Inc. and International Brotherhood of Painters and Allied Trades, AFL-CIO and District Council No. 2 of the Brotherhood of Painters and Allied Trades, AFL-CIO. Case 14-CD-569 March 21, 1979 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Tiger Stripers, Inc., herein called the Employer, alleging that Chauffeurs, Teamsters, Warehousemen and Helpers of America, Local Union No. 525, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Teamsters, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by District Council No. 2 of the Brotherhood of Painters and Allied Trades, AFL-CIO.' Pursuant to notice, a hearing was held before Hear- ing Officer Donald E. Gardiner on January 18, 1979. All parties appeared and were afforded full opportu- nity to be heard, to cross-examine witnesses, and to adduce evidence bearing on the issues. 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- ings 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 Employer is a party to two collective-bargaining agreements, one with Distnct Council No. 2 covering its work in certain parts of Missouri and requiring its employees to be members of that local, and a second contract with International Brotherhood of Painters and Allied Trades. AFL CIO, pertaining to its operations in an eight-state area, including Illinois. The charge identifies the group of employees involved as being represented by District Council No. 2. Although, as discussed infra, the employees are rep- resented by International Brotherhood of Painters and Allied Trades. AFL- CIO, rather than by District Council No. 2, with respect to the work in dispute, there is no contention that this resulted in any confusion as to which group of painters was contesting for the disputed work. Hereinafter, District Council No. 2, and International Brotherhood of Painters and Allied Trades, AFL-CIO, shall be jointly referred to as the Painters. 1. THE BUSINESS OF THE COMPANIES INVOLVED The parties stipulated, and we find, that the Em- ployer, a Missouri corporation with its principal place of business in Bridgeton, Missouri, is engaged in the business of painting lines on highways, parking lots, roads, and airport runways. The parties further stipu- lated, and we find, that the Employer is a person en- gaged in an industry affecting commerce within the meaning of the Act. The Employer is a subcontractor on a project in- volving the replacement of a bridge near the intersec- tion of Interstate Highway 70 and Illinois Highway 111 in East St. Louis, Illinois. The parties stipulated, and we find, that H. H. Hall Construction Company, herein called H. H. Hall, a Delaware corporation, is the general contractor on the site. In the course and conduct of its business operations, H. H. Hall pur- chased and received at its East St. Louis, Illinois, job- site goods valued in excess of $50,000 directly from points located outside the State of Illinois. The total cost of H. H. Hall's contract with the State of Illinois, including the bridge replacement portion, is in excess of $1 million. Accordingly, we find that the Employer and H. H. Hall are engaged in commerce within the meaning of the Act and that it will effectuate the pur- poses of the Act to assert jurisdiction herein. II. I.ABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Interna- tional Brotherhood of Painters and Allied Trades, AFL-CIO; District Council No. 2 of the Brotherhood of Painters and Allied Trades, AFL-CIO; and Chauf- feurs, Teamsters, Warehousemen and Helpers of America, Local Union No. 525, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor or- ganizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. Background and Facts of the Dispute As indicated, the Employer is engaged in the busi- ness of painting lines on highways, parking lots, roads, and airport runways. The Employer is party to and bound by collective-bargaining agreements with the Painters. Since the project is in Illinois, outside the District Council No. 2 geographical area, the Em- ployer's agreement with the International is the only relevant agreement, and the employees are represent- ed by the International with respect to the disputed work. 241 NLRB No. 36 306 TEAMSTERS LOCAL UNION 525 In the performance of its business, the Employer owns and utilizes a Ford C-600 truck. The truck con- tains, in addition to the driving cab, a compressor, paint pots, filters, paint guns, and bead dispensers. The truck and the machinery located thereon are op- erated and maintained during the course of a job by a driver and a painter-operator. Prior to the start of a project, the driver and the painter-operator check and set the various gauges and instruments located on the truck. Then, while the driver drives the truck at a predesignated speed and direction, the painter-opera- tor, from his post on the bed of the truck, sprays paint onto the road surface. The driver and the painter- operator are in constant radio communication during the painting operation. Any deviation in speed or di- rection by the driver will result in an improper mark- ing. With respect to the dispute itself, on or about De- cember 18, 1978, the Employer's truck was driven to the East St. Louis, Illinois, jobsite by Robert J. Kai- ser, the Employer's superintendent of operations. Work commenced on the striping of the bridge sur- face. Shortly thereafter a Teamsters steward ap- proached Kaiser and inquired if Kaiser was a mem- ber of the Teamsters. Kaiser told the steward that he was a member of the Painters. The steward instructed Kaiser not to continue painting. Kaiser then accom- panied the steward to a jobsite trailer. The steward called the Teamsters secretary-treasurer, Marshall McDuffy. Kaiser told McDuffy that the Employer had a contract with the Painters and that McDuffy should call Washington, D.C., to confirm it. McDuffy told Kaiser not to do any painting until the situation was resolved. Later that day Kaiser telephoned McDuffy to determine if McDuffy had confirmed the existence of the Employer's contract with the Paint- ers. According to Kaiser, McDuffy replied that he had contacted a Teamsters representative in Wash- ington and was told that there is no existing agree- ment between the Teamsters and the Employer. McDuffy told Kaiser that other striping companies operating in Southern Illinois used Teamsters mem- bers to drive their striping trucks. McDuffy then stated that "as far as we're concerned, when a Tiger Stripers truck pulls up on a job, it's not going to move unless there is a Teamster on the truck." At the time of the hearing the work in dispute was not completed. B. The Work in Dispute The parties stipulated that the work in dispute con- cerned the driving of a Ford C-600 truck which has painting and striping equipment attached to it, at the bridge replacement construction near Interstate 70 and Illinois Highway 111 in East St. Louis, Illinois. However, the truck is driven a substantial amount of time by Robert Kaiser, the Employer's superinten- dent of operations, and this fact raises a possible problem because a work assignment dispute under Section 10(k) of the Act does not involve a dispute over work performed by statutory supervisors, but rather is limited to disputes between "competing groups of employees over an employer's work assign- ment. " 2 In view of the foregoing consideration, we find that the work in dispute is the driving of a Ford C-600 truck, which has painting and striping equip- ment attached to it, at the bridge replacement con- struction near Interstate 70 and Illinois Highway 111 in East St. Louis, Illinois. excluding those times, if any, when such truck is assigned to be driven by an individual who is a supervisor under the Act. C. The Contentions of the Parties The Employer contends that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that there exists no voluntary method of settling the dispute. The Employer also contends that the collective-bargaining agreements, company practice, and skills and efficiency favor the work being performed by its employees represented by the Painters. The Painters concur with the Em- ployer in this position. The Teamsters contends that the disputed work falls within the jurisdiction based on area practice and skills and training. D. Application of the Statute Before the Board may proceed with the determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dispute. As to the former, it is clear that both unions are disputing the assignment of the work of driving the Employer's Ford C-600 truck at the East St. Louis, Illinois, jobsite. On December 18, 1978, Marshall McDuffy, the Teamsters secretary-treasurer, told Robert Kaiser, the Employer's superintendent of op- erations, according to Kaiser's testimony, not to do any painting until the dispute was resolved and, later, that "when a Tiger Stipers truck pulls up on a job, it's not going to move unless there is a Teamster on the truck." McDuffy denies making this statement. In a jurisdictional dispute context, the Board is not charged with finding that a violation did in fact oc- 2 Local 236, affiliated ith the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Maron Construction ComnpanvL 194 NLRB 594 (1971). 307 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cur, but only that there is reasonable cause to believe that there has been a violation.' On Kaiser's testi- mony, and without ruling on the credibility of the testimony in issue, we are satisfied there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. There is no evidence that the parties have adjusted the dispute or that there is an agreed-upon method for the voluntary adjustment of the dispute to which all parties are bound. Thus, while the Painters and Teamsters may have an informal arrangement for the adjustment of disputes, the Employer is not a party to that arrangement. We conclude that there is reasonable cause to be- lieve that a violation of Section 8(b)(4)(D) has oc- curred and that there exists no agreed-upon method for the 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) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various factors.4 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 factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreement Neither labor organization involved herein has been certified by the Board, nor is there evidence in- dicating that a Board certification covers the disputed work. The Employer is a party to a current, multistate collective-bargaining agreement with the Painters In- ternational Union. That agreement applies to "all painting of lines, arrows, bumpers, curbs, etc., on parking lots, parking garages, air fields, highways, game courts, and other surfaces." Pursuant to this agreement, the Employer has assigned the work in dispute to its employees represented by the Painters. The Employer is not a party to any collective-bar- gaining agreement with the Teamsters. We conclude, 3 Locals 138, 138A, 1388, 138C, and 138D, International Union of Operat.- ing Engineers, AFL-CIO (Cqffasso Lathing d Plastering, Inc.), 149 NLRB 156, 158-159 (1964). 'N.L.R. B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, A FL-CIO [Columbia Broad- casting System], 364 U.S. 573 (1961). 'InternationalAssociation of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). therefore, that the factor of collective-bargaining agreements favors the assignment of the disputed work to employees represented by the Painters. 2. Employer and area practice Since 1965, the Employer has used employees rep- resented by the Painters to perform the kind of work in dispute on this and similar jobs throughout the United States.6 The Employer has not used employ- ees represented by the Teamsters to perform this work, but has on occasion, when working in Illinois, allowed members of the Teamsters to ride in the cab of the truck or stand alongside of it while it is in operation. Nevertheless, the Employer's practice fa- vors an award of the disputed work to the employees represented by the Painters. Members of the Teamsters perform the same type of work for other employers in the Southern Illinois area, the geographical area wherein this dispute arises. No evidence was presented indicating that any employer other than the Employer uses employees represented by the Painters to perform the work in dispute in this area. However, when a job has been awarded to an employer from another State or an- other area and that employer uses its own employees in performing the work, the area practice prevalent where the jobsite is located cannot be considered de- terminative.7 3. Relative skills Both employees represented by the Painters and those represented by the Teamsters possess the ability to perform the work in dispute. Therefore, this factor does not favor either the Painters or the Teamsters. 4. Economy and efficiency of operation The employees represented by the Painters perform work for the Employer other than that in dispute. These employees maintain and prepare the painting equipment for operation and thereafter engage in the actual operation of the equipment. As a result, their versatility permits the Employer to perform both the disputed work and other work tasks with the same personnel. Thus, the driver can be kept busy with other tasks when he is not driving. Employees repre- sented by the Teamsters could not perform these 6 As stated above, the record shows that the Employer's superintendent of operations at times drives the Ford C-600 during the painting operations. Whether the superintendent is or is not a statutory supervisor cannot be determined by the record before us, but, as stated above, the dispute here to be resolved does not cover the operation of the truck while it is driven by an individual who is a supervisor within the meaning of the Act. I Sheet Metal Workers' International Association, Local Union No. 41, AFL-CIO (B & W Metals Company, Inc.), 231 NLRB 122 (1977). 308 TEAMSTERS LOCAL UNION 525 other tasks unless they receive substantial additional training. Accordingly, we find that the factor of econ- omy and efficiency achieved favor the assignment of the disputed work to the employees represented by the Painters. 5. Employer's job assignment and preference The Employer assigned the disputed work to its employees represented by the Painters when it arrived on the jobsite on or about December 18, 1978. The Employer continues to prefer that the disputed work be assigned to its employees represented by the Paint- ers. Thus, these factors favor the award of the dis- puted work to the employees represented by the Painters. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that the employees represented by the Painters are entitled to perform the work in dispute. We reach this conclusion relying on the collective-bargaining agree- ment; the Employer's practice, preference, and as- signment of the work; and the relative efficiency and economy of operation, all of which favor an award of the disputed work to the employees represented by the Painters.8 In making this determination, we are awarding the work in question to employees who are represented by the Painters, but not to that Union or its members. The present determination is limited to I Our award does not apply to the work involved at such times as the Ford C-600 truck is operated by an individual who is a statutory supervisor. the particular controversy which gave rise to this pro- ceeding. 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: 1. Employees of Tiger Stripers, Inc., who are rep- resented by the International Brotherhood of Painters and Allied Trades, AFL-CIO, are entitled to perform the driving of the Ford C-600 truck which has paint- ing and striping equipment attached to it at the bridge replacement construction near Interstate 70 and Illinois Highway 111 in East St. Louis, Illinois. 2. Chauffeurs, Teamsters, Warehousemen and Helpers of America, Local Union No. 525, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Tiger Stripers, Inc., 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, Chauffeurs, Team- sters, Warehousemen and Helpers of America, Local Union No. 525, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, shall notify the Regional Direc- tor for Region 14, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 309