Painmakers & Allied Trades Union Local No. 1975

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paintmakers & Allied Trades Union, Local No. 1975, AFL-CIO and L & H Paint Products, Inc. Brotherhood of Teamsters and Auto Truck Drivers Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and 1. & H Paint Products, Inc. Cases 20-CD-541- I and 20 CD-541-2 March 26. 1979 DECISION AND DETERMINATION OF DISPUTE BY MEiMBI RS JNKINS, MURPHY, AND TRUESDALFE This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by L & H Paint Products, Inc., herein called the Employer, alleging that Paintmakers & Al- lied Trades Union, l.ocal No. 1975, AFL CIO, herein called Paintmakers and Brotherhood of Teamsters and Auto Truck Drivers Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called Team- sters, had respectively, 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 employees represented by the one rather than to employees represented by the other. Pursuant to notice, a hearing was held before Hear- ing Officer Paula J. Paley on November 27 and 28, 1978.' All parties appeared and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the is- sues. 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. IHF BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a California corporation with its principal place of business in San Francisco, California, is en- gaged in the manufacture and distribution of paint products. During the past year, the Employer pur- chased goods and services from outside the State hav- All dates hereinafter are in 1978. unless otherwise indicated. ing a value of $50,000. The parties also stipulated, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. ii. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Paint- makers and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. Background and Facts of the Dispute Since 1941, the Employer has been engaged in the distribution of paint products throughout the area of northern California. In 1946, the Employer com- menced the manufacturing phase of its operations and, at approximately the same time, began utilizing two trucks, hereafter referred to as truck No. I and truck No. 2, to make its deliveries and pickups of raw materials. Truck No. I has for the most part been driven on a full-time basis, since 1946, by an employee member of the Teamsters.2 Truck No. 2, however, has, since 1946 until the latter part of July 1978, been driven by an employee member of the Paintmakers on a part-time basis to handle the overflow work which the driver of truck No. I was unable to do. Historically, the amount of driving performed by the employee mem- ber of the Paintmakers on truck No. 2 has averaged approximately 4 hours a day. Thus, the remaining portion of that employee's workday was spent doing other unit work in the Employer's warehouse. Since 1946, the Employer has maintained succes- sive collective-bargaining agreements, known as "Let- ter(s) of Understanding," with the Paintmakers cover- ing all of the Employer's production and warehouse employees.3 These "Letters of Understanding," the most recent of which expires on February 1, 1981, have traditionally contained a provision providing for the rates of pay to be paid a truckdriver employed by the Employer. The Employer has also maintained, since 1955, successive collective-bargaining agreements with the Teamsters, the most recent of which expires on I The teamster driver of truck No. I left his employ in 1950, but returned to his former position in 1955. During his absence, truck No. I was driven by an employee member of the Paintmakers 'The "Letter of Understanding" essentially adopted, with some modifica- tions, the collective-bargaining agreement entered into between the Paint- makers and United Employers, Inc., a multiemployer association represent- ing various paint manufacturers operating in northern California. The Em- ployer herein is not a member of United Employers, Inc. 241 NLRB No, 48 420 PAINTMAKERS & ALLIED TRADES UNION, LOCAL NO. 1975, AFL-CIO March 1. 1979, 4 covering all truckdrivers employed by the Employer. According to the testimony of San Francisco Em- ployer's Council representative, Paul S. Finkle, on May 2, Teamsters Recording Secretary and Business Manager Timothy Richardson informed him during the course of an arbitration hearing that he (Richard- son) intended to have members of the Teamsters per- form all of the Employer's driving work, including the driving of truck No. 2, since, in his view, all such work properly belonged to that union. Finkle alleg- edly replied that the practice of having a member of the Teamsters drive truck No. I and a member of the Paintmakers drive truck No. 2 would continue as it historically had. Finkle also testified as to another conversation with Richardson on July 19 during which time Richardson again repeated his demand for the work performed on truck No. 2 by a member of the Paintmakers and further allegedly threatened to picket and shut down the Employer's plant if the Employer refused to comply with his demands. Shortly thereafter, Finkle called the Employer's pres- ident, Warren Porter, and informed the latter of Rich- ardson's demands and threat to picket. Porter testified that during the latter part of July, he had a conversation with Richardson at which time Richardson allegedly repeated the demand made on Finkle for all truck driving work and threatened to picket the Employer if such demand was not met. Contrary to both Finkle and Porter, Richardson, while admitting having had conversations with both of them, nevertheless testified that during these con- versations he informed Finkle and Porter that the Teamsters were claiming the right to drive truck No. 2 only on those occasions when such driving work being performed by a member of the Paintmakers ex- ceeded 4 hours per day. Richardson further testified that while during these conversations he discussed picketing the Employer, he nevertheless stated to both Finkle and Porter that the object of said threat to picket was to compel the Employer into executing an already agreed-to collective-bargaining agreement. Porter testified, without contradiction, that the day after he spoke to Richardson, he (Porter) telephoned the Paintmakers president, Kenneth Reeves, and in- formed the latter of the Teamsters demand for the work performed on truck No. 2 and of their threat to picket if such work was not assigned to them. Reeves replied that the job of driving truck No. 2 was within the jurisdiction of the Paintmakers and that, if the Employer were to assign such work to a member of the Teamsters, the Paintmakers would picket the Em- This agreement, known as the "Pickup and Delivery Master Agreement" essentially adopts, with some modification. the collective-bargaining agree- ment entered into between the Teamsters and the San Francisco Employers Council. a multiemployer association of which the Employer herein is a member. ployer.5 Shortly thereafter, Porter contacted the Teamsters hiring hall and, since about the end of July or the beginning of August, a member of the Team- sters has been dispatched from the hiring hall to drive truck No. 2.6 In late August, the Paintmakers filed a grievance concerning said assignment and further demanded "run-around pay" for the time spent by the member of the Teamsters driving truck No. 2.7 During the hearing held on its grievance, as well as at the hearing in the present case, Reeves indicated that the Paint- makers was seeking jurisdiction over all of the Em- ployer's truck driving work since, in his view, such work was covered by its collective-bargaining agree- ment with the Employer. On October 19, according to Finkle, Richardson informed him that the Teamsters intended to picket and shut down the Employer because the latter had not yet signed the collective-bargaining agreement, and on October 20, the Teamsters picketed the Em- ployer for several hours. That same day, the Em- ployer filed the instant charges. B. The Work in Dispute While the notice of hearing states that the work in dispute consists of"all truck driving work for L & H Paint Products, Inc., 150 Mississippi Street, San Francisco, California," the Teamsters nevertheless as- serts that the dispute herein concerns only the driving of truck No. 2 when such work exceeds 4 hours per day. However, as noted above, the Paintmakers has claimed the right to all of the Employer's truck driv- ing work and, in view thereof, we find that the work in dispute, as stated in the notice of hearing, consists of all of the Employer's truck driving work. C. Contentions of the Parties The Employer contends that based on consider- ations of efficiency and economy of operations, as well as employer preference, all of its truck driving work should be assigned to employees represented by the Paintmakers. The Teamsters, however, contends that the Board should refrain from making a work assignment deter- mination with respect to truck No. I inasmuch as no I According to Finkle's uncontroverted testimony, Reeves made a similar demand and threat on August 23. 6 According to the Employer, whenever the truck No. I driving position became vacant, the employee-member of the Paintmakers driving truck No. 2 would be assigned to drive truck No. I and would thereafter become a member of the Teamsters (except for the 5-year period indicated in fn. 2, supra). Another employee-member of the Paintmakers would then be as- signed to dnve truck No. 2. ? Further processing of the grievance has been held in abeyance pending a Board Decision in the instant case. 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat to picket has been made by the Paintmakers concerning the work performed on said truck. It fur- ther contends that based on its collective-bargaining agreement with the Employer and the past practice of the parties as well as the area practice, all driving work on truck No. 2 which exceeds 4 hours per day should be assigned to employees represented by it. Contrary to the Teamsters, the Paintmakers asserts that pursuant to its collective-bargaining agreement with the Employer, its members have a right to per- form all of the Employer's truck driving work and, accordingly, argue that all such work be assigned to employees represented by it rather than to employees represented by the Teamsters. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that there is no agreed-upon method for voluntary adjustment of the dispute. As to the latter point, the parties stipulated and the record reveals that there is no agreed-upon method for the resolu- tion of the instant dispute. With respect to whether reasonable cause exists to believe Section 8(b)(4)(D) has been violated, it is undisputed that, as stated above, Paintmakers President Reeves on various oc- casions threatened to picket the Employer if the latter allowed an employee represented by the Teamsters to drive truck No. 2. As to whether or not there is reasonable cause to believe that the Teamsters violated Section 8(b)(4)(D) of the Act, as noted above, Finkle and Porter both testified that Teamsters President Richardson on separate occasions threatened to picket the Employer if the latter did not assign the driving of truck No. 2 to employees represented by the Teamsters. While Richardson denies having made such threats, a con- flict in testimony does not prevent the Board's pro- ceeding under Section 10(k) for, in this proceeding, the Board is not charged with finding that a violation did, in fact, occur but only that reasonable cause ex- ists for finding such a violation. Thus, without ruling on the credibility of the testimony at issue,8 we find under all of the above circumstances, that such rea- sonable cause exists, 9 and that the dispute is properly s Local 24, The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (EL. & S. Contracting Co., Inc.), 231 NLRB 158 (1977). 9 In view of our finding herein, we find it unnecessary to reach the question raised by the Employer in its brief of whether the picketing by the Teamsters in October had as one of its objects the assignment of the disputed work to its employee members. However, in the event that this matter proceeds to the complaint and heanng stage. nothing herein should be construed as preclud- ing litigation there of this issue. before the Board for determination 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.t 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. 2 The following factors are relevant in making the determination of the dispute before us: I. Collective-bargaining agreements and certifications Neither the Paintmakers nor the Teamsters has been certified by the Board as bargaining agent of the Employer's employees, and thus certification is not a factor favoring either group of employees. As noted above, both the Paintmakers and the Teamsters are parties to separate collective-bargain- ing agreements with the Employer. As further noted, both agreements contain provisions which, in our view, arguably cover the work in dispute." Accord- ingly, we find this to be a neutral factor in reaching our determination. 2. Company and area practice From the above-stated facts, which are essentially undisputed, it is clear that the Employer's past prac- tice with respect to the work in dispute has been to allow truck No. I to be driven by an employee repre- sented by the Teamsters and truck No. 2 to be driven ' We find no merit to the Teamsters contention that the Board should refrain from making a work assignment with respect to truck No. I on the grounds that the Paintmakers threat to picket did not encompass such work. The Paintmakers threat to picket must be viewed in light of its subsequent demand for all truck driving work. Accordingly, we find that its threat to picket covered the assignment of all such work, not just the work of dnving truck No. 2. 1 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL -CIO Columbia Broad- casting System], 364 U.S. 573 (1961). 11 International Association of Machinists, Lodge No. 1743, AFL CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). '1 The "Letter of Understanding" between the Paintmakers and the Em- ployer states as follows: It is ... understood and agreed that the Truck Driver rates for L & H Paint Products shall be: Truck Dnver-2/1/78, $7.61; 2/1/79, $8.16; 2/1/80, $8.66. Art. 47, sec. I of the collective-bargaining agreement between the Team- sters and the Employer provides that: Except as provided in this Article, only persons working under thejuns- diction of this Supplemental Agreement shall: (a) Drive, load and unload trucks, trailers, vans, or any other type of equipment used in connection with trucks. 422 PAINTMAKERS & ALLIED TRADES UNION, LOCAL NO. 1975. AFL-CIO by an employee represented by the Paintmakers. There is no evidence to indicate that truck No. 2, prior to July, had been driven by an employee repre- sented by the Teamsters whenever such work, per- formed by an employee represented by the Paint- makers, exceeded 4 hours per day. Rather, the evidence reveals that while at times the work per- formed by said employee exceeded 4 hours per day, until May 1978 no effort was made by the Teamsters to claim jurisdiction over such work. Thus, we find that the Employer's past practice favors awarding the job of driving truck No. I to an employee represented by the Teamsters and the job of driving truck No. 2 to an employee represented by the Paintmakers. Both the Paintmakers and the Teamsters argue that the practice in the area concerning the work in dis- pute here favors awarding such work to their respec- tive members. Thus, the Paintmakers argues that pur- suant to their collective-bargaining agreements with similar employers in the San Francisco area, their members perform the driving work for said employers on a full-time basis. Similarly, the Teamsters argues that pursuant to collective-bargaining agreements with other employers in the same area, its members perform all truck driving work which exceed 4 hours per day. Since the area practice concerning the work in dispute appears to be mixed, we find such factor to be inconclusive in making our determination. 3. Relative skills The record reveals that no special skills are re- quired for the performance of the work in dispute, and that employees from both competing groups have satisfactorily performed such work. Thus, we find, that employees represented by either the Paintmakers or the Teamsters are capable of performing the dis- puted work.'4 Accordingly, we find this to be a neu- tral factor in reaching our determination. 4. Economy and efficiency of operations The record establishes that whenever the em- ployee-member of the Paintmakers was not actually driving truck No. 2, he spent the remainder of the day performing other unit work in the Employer's ware- house. If, however, an employee represented by the Teamsters were to drive truck No. 2, he would not, unlike the employee represented by the Paintmakers, be permitted to perform other work properly within the jurisdiction of the Paintmakers and would remain idle. The Employer, nevertheless, would be obligated, under the terms of its collective-bargaining agreement 14 In view of this finding we find no merit to the Employer's argument that only an employee represented by the Paintmakers, familiar with the cus- tomer routes and truck-loading methods, can perform the work in dispute. with the Teamsters, to pay said employee for a full day regardless of the number of hours worked. Thus, we find that the factor of economy and efficiency of operation favors awarding the job of driving truck No. 2 to an employee represented by Paintmakers. However, as with the skills factor, we find this factor to be neutral with respect to the work performed on truck No. I inasmuch as said truck is driven on a full- time basis and the employee performing such work, whether he be represented by the Paintmakers or the Teamsters, would work a full day and be paid accord- ingly. 5. Employer preference While expressing, in its brief to the Board, a prefer- ence for having all of its driving work performed by employees represented by the Paintmakers, the Em- ployer, at the hearing, indicated that in the alterna- tive it would not object to having the work performed as it had been previously, to wit: an employee repre- sented by the Teamsters driving truck No. I and an employee represented by the Paintmakers driving truck No. 2. Thus, while this factor tends to favor an award of all work to employees represented by the Paintmakers we, nevertheless, find it not to be deter- minative. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that employees of L & H Paint Products, Inc., who are represented by the Teamsters are entitled to per- form the work of driving truck No. I and employees of said Employer who are represented by the Paint- makers are entitled to perform the work of driving truck No. 2. We reach this conclusion on the basis of the Employer's past practice of so assigning the dis- puted work to employees represented by these two unions. Additionally, as it pertains to the assignment of the disputed work on truck No. 2, we rely on the factors of efficiency and economy of operations. In making this determination, we are awarding the work in question to employees who are represented by the Teamsters and the Paintmakers, but not to those Unions or to their members. The present determina- tion 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- 423 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees employed by L & H Paint Products, Inc., who are represented by Brotherhood of Team- sters and Auto Trucks Drivers Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, are entitled to perform the work of driving truck No. I for L & H Paint Products, Inc., to and from its facilities located in San Francisco, California. 2. Employees employed by L & H Paint Products, Inc., who are represented by Paintmakers & Allied Trades Union, Local No. 1975, AFL-CIO, are enti- tled to perform the work of driving truck No. 2 for L & H Paint Products, Inc., to and from its facilities located in San Francisco, California. 3. Brotherhood of Teamsters and Auto Truck Drivers Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require L & H Paint Products, Inc., to assign the disputed work of driving truck No. 2 to employees represented by it. 4. Paintmakers and Allied Trades Union, Local No. 1975, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act, to force or require L & H Paint Products, Inc., to assign the dis- puted work of driving truck No. I to employees rep- resented by it. 5. Within 10 days from the date of this Decision and Determination of Dispute, the Brotherhood of Teamsters and Auto Truck Drivers Local 85, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, and the Paint- makers & Allied Trades Union, Local 1975, AFL- CIO, shall each notify the Regional Director for Re- gion 20, in writing, whether it shall refrain from forc- ing or requiring the Employer, by means proscribed in Section 8(b)(4)(D) of the Act, to assign the dis- puted work in a manner inconsistent with the above determination. 424