Teamsters, Local 294

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, Local 2941 and Eastern New York Construction Employers, Inc. and Fehl- haber Corporation and Horn Construction Company, Inc., A Joint Venture 2 and Local 106, International Union of Operating Engineers, AFL-CIO. Cases 3-CD-177 and 3-CD-177-2 June 13, 1967 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, Series 8, as amended, following charges filed by Eastern New York Construction Employers , Inc., hereinafter called Employer Association , and Fehlhaber Corporation and Horn Construction Company, Inc., A Joint Venture, hereinafter called Employer , alleging, in effect, that International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, Local 294, hereinafter called Teamsters, has violated Section 8(b)(4)(D) of the Act. A hearing was duly held before Hearing Officer Thomas J. Sheridan on November 29, 1966, and January 17, 18, and 31, 1967. All parties appeared at the hearing and were afforded full opportunity to be heard , to examine witnesses , and to adduce evidence bearing on the issues . The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The Employer Association , the Employer , Teamsters, and Local 106 , International Union of Operating Engineers , AFL-CIO, hereinafter called Operating Engineers , have filed briefs, which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case , the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYERS The parties stipulated, and we find, as follows: Fehlhaber Corporation and Horn Construction Company, Inc., is a joint venture engaged in constructing the foundation for the South Mall, Albany, New York, under contract with the State of New York. Both are New York State corporations. The South Mall job is valued at or about $37 million and both corporations receive in excess of $50,000 ' The name appears as amended at the hearing worth of goods and materials annually from points located outside New York State. Eastern New York Construction Employers, Inc., is a New York State corporation engaged in negotiating labor agreements and handling other labor relations matters for its member-employers, including the Employer herein. Its members annually receive in excess of $50,000 worth of goods and materials from points located outside New York State. George Frueh & Sons is presently engaged in the trucking of fuel and fuel oil to the South Mall jobsite under a contract with the Employer, and during the past year purchased in excess of $50,000 worth of fuel and fuel oil from Mobil Oil Company, Port of Albany, Albany, New York, which fuel and fuel oil were shipped to Mobil from outside New York State. The parties further stipulated, and we find, that all of the above companies are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that Teamsters and Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background This case involves the fueling of certain equipment on the construction jobsite. In July 1966, the Employer began work, pursuant to its contract with the State of New York, on the construction of a foundation for the platform of the South Mall, Albany, New York. The South Mall project consists of the construction of a complex of buildings covering a 99-acre area. By letter dated August 11, 1966, the Employer contracted with Frueh to supply diesel fuel from Frueh's metered trucks into the Employer's construction equipment such as driving rigs, truck cranes, and portable welding machines, as well as stationary fuel tanks and portable fuel drums, on the Employer's jobsite. The fuel is fed into the equipment, tanks, and drums directly from the truck through a hose with an attached nozzle. At all times material, George Frueh and his son, James, who also is his partner, drove their own fuel trucks, with James Frueh making most of the fuel deliveries to the Employer. Frueh had no employees. Both George Frueh and his son are members of Teamsters. Through its membership in Employer Association, the Employer has a collective-bargaining contract 2 The name appears as amended at the hearing 165 NLRB No. 44 TEAMSTERS , LOCAL 294 with Operating Engineers covering oilers and operating engineers who operate and maintain the construction equipment here involved. It also has a collective-bargaining agreement with Teamsters covering employees who operate the Employer's material pickup trucks on the jobsite. Although the testimony is somewhat conflicting, there is evidence that prior to the instant dispute, Frueh or his son filled the stationary fuel tanks and portable drums on the Employer's jobsite, and then drove the truck to the construction equipment operated by members of Operating Engineers. If the operating engineer or oiler asked for the hose nozzle, or if the equipment fuel tank was too high off the ground for Frueh to insert the nozzle into the equipment fuel tank, Frueh or his son handed the nozzle to the operating engineer or oiler, and the latter fueled the equipment. On those occasions when no operator or oiler was present, or when these men did not ask for the nozzle, Frueh or his son did the fueling. Construction equipment was also occasionally fueled from the portable drums, as well as from 5- gallon cans in which fuel was carried from the stationary tanks. As indicated above, prior to October 6, 1966, only Frueh or his son rode in Frueh's trucks on the Employer's jobsite. On October 6, 1966, Teamsters Business Agent Carusone instructed Leo Lester, employed by the Employer to drive one of its pickup trucks and the Teamsters steward on the jobsite, to ride Frueh's truck and "give him a hand" with the fueling. Lester accompanied Frueh on the truck, but when he attempted to fuel the equipment manned by Operating Engineers members, O'Brien, the Operating Engineers job steward, insisted that Lester give him the nozzle to fuel the equipment and stated that the work belonged to operating engineers. Lester did give him the nozzle. Later that same day, when the Employer's piling and sheeting superintendent, Fearon, objected to Lester's riding Frueh's truck, Lester replied that Carusone had instructed him to have a Teamsters employee of the Employer ride on Frueh's truck. Fearon and the Employer's general foreman, Andreassen, then met on the jobsite with Carusone and Teamsters Business Agent Germain. Fearon told Carusone that he would not permit one of his employees to ride on Frueh's truck, and Carusone insisted that a Teamsters man was going to fuel the equipment. Carusone also stated that he had given orders for a teamster to put the nozzle into the tank and not surrender it to an operating engineer. Also on October 6, Carusone told Burros, the Employer's project manager, that the fueling of the equipment belonged to his local, that he was going to insist that all phases of the fueling be done by his teamsters, and if it was not done by them, he would stop delivery of fuel to the job. A meeting to resolve the dispute was arranged with Operating Engineers officials for October 12. 349 During the October 12 meeting, which was attended by representatives of the Employer, Employer Association, and the two Unions, an Operating Engineers representative asked Team- sters Business Agent Germain if his union was also claiming fueling with 55-gallon portable drums and 5-gallon cans, and Germain said it was. On October 14, Fearon saw James Frueh on the job and asked him why he was not fueling. Frueh replied that he would be fined $500 by his union if he did. Fearon asked Lester if this was true, and Lester confirmed it. The Employer then arranged to have the equipment fueled from the drums, some of which drums were filled by Frueh and others sent to outside suppliers to be filled. On October 17, Carusone informed Burros that his teamsters were going to handle the nozzle and, if they insisted on giving the nozzle to the engineers, they would not get any fuel into the job at all. Burros replied that he wanted to bring the matter to a head, and would instruct the equipment operators to fuel their own equipment. The next morning, Lester again rode on Frueh's truck with James Frueh, and when operating engineers asked for the nozzle, Lester refused to give it to them. When the fuel supply was used up that day, Fearon asked Lester to get the drums filled at an outside supplier. Lester replied that Carusone would not permit him to do so. Several meetings took place on October 18 among representatives of the Employer, Employer Association, and the two Unions, during which Carusone threatened to place pickets on the job when Fearon told him that the Employer's employees would fuel the equipment themselves; either Carusone or Germain stated that any teamster who took the drums outside to be filled would be fined $500; and Carusone threatened to place a picket line around the entire South Mall job if operating engineers were permitted to fuel their equipment with 5-gallon cans. Later that day, the job was shut down due to the lack of fuel. B. Contentions of the Parties The Employer and the Employer Association contend that a jurisdictional dispute exists between Teamsters and Operating Engineers over the assignment of work involving not only the handling of the nozzle on the fuel truck , but also the fueling of the equipment with drums and 5-gallon cans; and that the disputed work should be awarded to members of the Operating Engineers , based on, inter alia, its assignment , efficiency of operation, and past practice. Operating Engineers agrees with the Employer's position , and further contends that the disputed work is covered by the contract between Employer Association and Operating Engineers. Teamsters contends that there is no jurisdictional dispute; if there is a dispute , it involves only the handling of the hose nozzle of the fuel truck ; and the 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work should be awarded to its members on the grounds of past practice, Operating Engineers cession of jurisdiction over the disputed work to the Teamsters, and the Teamsters contract with Employer Association. C. Applicability of the Statute Before the Board may proceed to a determination of 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) has been violated. Teamsters contends that it did not violate Section 8(b)(4)(D) because the Employer in its letter to Frueh dated August 11, 1966, stating "we accept your proposal to furnish, from your metered trucks into our equipment on the jobsite, Diesel fuel at the price of twelve and one half cents ($0.125) per gallon," contracted out the work in dispute to a third party, Frueh, which has no employees, and there is therefore no dispute over an assignment of particular work from one group of employees to another group of employees. Teamsters also argues that the Employer shut down the job of its own volition.; We find no merit in these contentions. The record shows that on two occasions, October 6 and 18, Leo Lester, an employee of the Employer, upon instructions from Teamsters, of which he was a member, rode the Frueh fuel truck around the jobsite and attempted to, and did, perform the work of inserting the truck's hose nozzle into construction equipment, and Teamsters also claimed the work of fueling construction equipment, from portable drums and cans, which work was also claimed by, and assigned by the Employer to, its employees represented by Operating Engineers; that during the period October 6 to 18, 1966, Teamsters threatened to picket and stop all deliveries of fuel to the jobsite with an avowed object of forcing or requiring the Employer to assign the disputed work to employees represented by Teamsters, rather than to employees of the Employer who are represented by Operating Engineers; and that on October 18 the Employer's job on the South Mall project was shut down for lack of fuel. In these circumstances, we conclude, on the basis of the entire record, that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. D. The Disputed Work The work in dispute is fueling the tanks of construction equipment, including driving rigs, truck cranes, and portable welding machines, by fuel delivery truck hose, portable drums, and cans. The fuel tanks are part of equipment operated or manned by Employer's employees who are members of Operating Engineers, at the South Mall building construction jobsite.4 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 the evidence supporting the claims of the parties and balancing all relevant factors.5 1. Certification and bargaining agreements There is no Board certification covering the disputed work. The Teamsters contract with the Employer Association contains a Wage Scale Agreement setting forth pay rates for "fuel trucks" on the site. The Operating Engineers agreement with the Employer Association contains pay rates for oilers and engineers and requires that engineers on certain equipment perform the duties ordinarily performed by oilers on such machines. While these contract provisions fix the wage rates which the Employer is required to pay specific classifications of employees, and contain references to "fuel trucks" and "engineers and oilers," the Teamsters contract, in general, covers only driving of trucks for transportation of materials to and on the jobsite, and the reference in the Operating Engineers contract to the duties of engineers is not related to the fueling of equipment by an offsite fuel supplier. Neither contract specifically refers to the work in dispute. Therefore, since neither the Teamsters nor the Operating Engineers collective-bargaining agree- ment refers to the specific work in dispute, it would appear that these contracts do not favor either party. 2. Other agreements Teamsters argues that the Employer's contract with Frueh, a teamster, requiring Frueh to furnish fuel from his metered trucks "into our equipment on the job site" constituted an assignment of the disputed work to Teamsters. However, this agreement related primarily to the supply of fuel to the jobsite and the price to be paid by the Employer for the fuel; it does not specify the details of delivery or the kinds of equipment to be fueled, nor does it refer to the handling of the nozzle. Moreover, there is no evidence that at the time Frueh began to supply 3 In connection with this contention, at the hearing Teamsters made a "Motion for Intervention," requesting consolidation of the charges herein with a charge which it filed in Case 3-CD-178, on November 14, 1966, against Operating Engineets This motion was referred by the Hearing Officer to the Regional Director, who did not rule thereon The motion is denied because, among other reasons, the charge in Case 3-CD-178 was dismissed on December 22, 1966, with no appeal being taken " There is no dispute over the work of filling the stationary fuel tanks S International Association of Machinists, Lodge 1743, AFL-CIO (J A Jones Construction Co), 135 NLRB 1402, N L R B v Radio and Television Broadcasting Engineers Union, Local 1212 (Columbia Broadcasting System), 364 U S 573 TEAMSTERS, LOCAL 294 fuel to the Employer, or at any other time, any representative of the Employer mentioned whether or not Frueh was to handle the nozzle. Teamsters also contends that a 1959 intraunion agreement it signed with International representa- tives of Operating Engineers gave jurisdiction of the fuel truck to Teamsters. However, as Operating Engineers Financial Secretary Moran testified, he was present when this agreement was signed. The agreement related solely to the driving of the fuel truck, which on occasion had been driven by Operating Engineers members, and his Union specifically retained jurisdiction over the fueling of the equipment. Teamsters also introduced into evidence a 1965 document signed by Operating Engineers President Daniel McGraw in connection with a series of unfair labor practice charges filed against the Union. This document states that Operating Engineers gave up its claim to the nozzle. However, the dispute to which the document referred arose under the so- called Heavy and Highway Contract, and concerned the transportation of fuel on highway construction projects,i' not involved herein. Therefore, since neither the Employer's fuel contract with Frueh, nor any of the above intraunion agreements covers the specific work in dispute, none of these agreements favors either party. 3. Skill and training Inasmuch as it is undisputed that there is no particular skill or training required for the performance of the disputed work, these factors also fail to favor either Teamsters or Operating Engineers. 4. Employer, area, and industry practice The evidence adduced at the hearing is conflicting with respect to the custom and practice of the Employer before the dispute herein arose, and the custom and practice in the area and in the industry. However, there was testimony by Employer and Employer Association representatives that, prior to the dispute, the equipment operated or manned by Operating Engineers was fueled by either Frueh or the equipment operator handling the nozzle of the delivery truck. There was also testimony by some 20 members of Operating Engineers that they fueled their own equipment and handled the nozzle. The Fruehs and four Teamsters members testified that the fuel truck driver almost always handled the nozzle on the Employer's job prior to the dispute, and on other area jobs. Three of the Employer's c There is no merit in Teamsters contention that it was prejudiced by the Hearing Officer's rejection, as not material or relevant, of evidence that two unfair labor practice charges were filed in August 1965, by Teamsters against Operating Engineers in Cases 3-CD-155 and 3-CD-148-2, involving the fueling of heavy and highway construction equipment, as, among other reasons, the charges have been withdrawn 351 laborer employees testified that prior to the dispute, they saw the fuel truck driver handle the nozzle on occasion. With regard to fueling with drums and 5-gallon cans, the evidence shows that Operating Engineers and Teamsters members have fueled heavy equipment at the Employer's jobsite in this manner. There is thus evidence of Teamsters members performing fueling operations on highway construction, and on other general construction jobs. Although Teamsters have also fueled the Employer's equipment from drums and cans, this practice has been mixed. However, Teamsters members who are employees of the Employer have never, except on the two occasions which gave rise to this dispute, handled the nozzle of the delivery truck hose, whereas employee-members of Operating Engineers have done so. 5. Efficiency of operation The record establishes that equipment must be stopped during fueling,' so that the operating engineer on the equipment is available to handle the hose. Since the fuel tank on some of the equipment is several feet off the ground, it would appear to be as practicable and efficient for the fuel truck driver to hand the nozzle to the equipment operator, as it would be for the driver to climb up on the equipment and insert the nozzle in the fuel tank. Moreover, the operator is charged with responsibility for the care and maintenance of the equipment he operates. Since fueling may be considered a part of maintenance, it would be appropriate for the operator to fuel the equipment that he maintains. Conclusion Upon consideration of all pertinent factors in the entire record, we find that employees represented by Operating Engineers are entitled to the disputed work. The Employer has assigned the work to them on the reasonable theory that the individual operating and manning the equipment should fuel it. The employees to whom the work has been assigned have performed it to the Employer's satisfaction, and it is clear that the present assignment is practical, efficient, safe, and not inconsistent with past practice on this jobsite or in the building construction industry. Therefore, we shall determine the existing jurisdictional dispute by awarding the disputed work to employees represented by Operating Engineers, rather than to employees represented by Teamsters. In making this determination, we are awarding the disputed work to ' The Hearing Officer referred to the Board the Employer's request that the Board take judicial notice of the New York State Code, Rule No 23, that cranes must he locked and engines must be shut off for fueling Teamsters objected on the grounds of relevancy As we find this rule relevant to the issues herein, the request is granted, and the code provision has been considered 352 DECISIONS OF NATIONAL employees represented by Operating Engineers, but not to that Union or its members. Accordingly, we find that Teamsters was not, and is not, entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the disputed work to employees represented by said Union, rather than to the Employer's employees represented by Operating Engineers. 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 case, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees employed by the Employer, who are represented by Local 106, International Union of Operating Engineers, AFL-CIO, are entitled to perform the work of fueling equipment operated or 9 Our determination herein is restricted to the fueling, by the insertion of delivery truck hose nozzles, and by portable drums and 5-gallon cans, of equipment operated or manned by LABOR RELATIONS BOARD manned by them on the Employer's jobsite at the South Mall building construction project located in Albany, New York.8 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local294, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the above- described work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 294, shall notify the Regional Director for Region 3, in writing, whether or not said Union will refrain from forcing or requiring the Employer to assign the work in dispute to employees represented by said Union, rather than to employees of the Employer represented by Local 106, International Union of Operating Engineers, AFL-CIO. employees who are represented by Operating Engineers, and does not include such fueling of equipment by members of other crafts not involved in the dispute herein