Teamsters, Warehousemen and Auto, Etc., Local 684

24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters,- Warehousemen and Auto Truck Drivers, Local No. 684, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Mercer-Frazer Company. Case 20-CD-257 January 8, 1969 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS BROWN, JENKINS , AND ZAGORIA This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed on May 23, 1968, by Associated General Contractors on behalf of Mercer-Frazer Company, herein called the Employer, alleging that Teamsters, Warehousemen and Auto Truck Drivers, Local No. 684, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters, had violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Dawn B. Girard on August 8 and 16, 1968. All parties appearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Employer and the Teamsters, both of whom appeared at the hearing as parties to the dispute. Upon the entire record in the case, the National Labor Relations Board' makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated that Mercer-Frazer Company is a California corporation engaged in highway construction in the northern California area. Its principal office is located in Eureka, California. During the past 12-month period the Employer purchased material valued in excess of $50,000 directly from outside the State of California, and the value of work performed on interstate highways exceeded $500,000. We find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The Teamsters and Operating Engineers Local Union No . 3, International Union of Operating Engineers, AFL-CIO, herein called Operating Engineers,2 are labor organizations within the 'Pursuant to the provisions of Section 3(b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel meaning of the Act. III. THE DISPUTE A. The Work in Issue The work that gave rise to this proceeding involves the manning and operation of the Employer's mobile lubrication truck. Because much of the Employer's equipment is used at locations away from its central facilities, the Employer maintains a mobile lubrication truck at the jobsite for the purpose of lubricating those pieces of equipment that do not normally return at night to a central location where stationary lubrication facilities are located. The equipment involved is essentially heavy duty construction equipment operated by operating engineers, such as graders, bulldozers, and scrapers, as well as standing equipment, and various trucks driven by Teamster drivers. B. Contentions of the Parties The Employer contends that the Board should find a jurisdictional dispute and assign the work of operating the mobile lubrication truck to its employees represented by the Operating Engineers. The Teamsters contends that there is no jurisdictional dispute, but alternately claim that based on its contract with the Employer and industry practice, employees represented by it are entitled to have the work of greasing trucks assigned to them. C. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine the dispute out of which a Section 8(b)(4)(D) charge has arisen. However, before the Board proceeds with a determination of dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. In order to conclude that reasonable cause exists, the Board must find evidence in the record showing that conduct proscribed by this section has occurred and that such conduct was engaged in for the purpose of forcing or requiring an employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class. The record shows that in February, at the beginning of the 1968 season, the Employer assigned the work of driving the mobile lubrication truck to an employee represented by the Operating Engineers. Thereafter, the Teamsters claiming part of the work filed a grievance which was denied by the Employer. During the weeks immediately 'The Operating Engineers did not enter an appearance at the hearing. 174 NLRB No. 5 TEAMSTERS, WAREHOUSEMEN AND AUTO, ETC., LOCAL 684 preceding May 22, 1968, Sal Burke, representative of Teamsters, contacted the Employer several times regarding the grievance and demanded that a Teamster be put on the grease truck. The Employer denied this request asserting that only one man was needed. On or about May 22, 1968, employees represented by the Teamsters stopped work in protest over the continued assignment of the grease truck work to the employee represented by the Operating Engineers, and picketed the Employer's premises. The legend on the picket signs read: We Do Not Patronize Mercer-Frazer, Inc. Violation Agreement Missassignment Work Brotherhood of Teamsters The picketing ceased 2 days later as a result of a temporary restraining order granted by a California State Court. The Teamsters contends that it was not seeking either to have the operating engineer removed from the truck or to perform the work of lubricating equipment operated by operating engineers. Rather, it contends that it was only seeking through the grievance procedure and through the picketing to have a Teamsters member perform the work of lubricating those pieces of equipment operated by Teamsters drivers. Upon the evidence before us, we are satisfied that there is reasonable cause to believe that the Teamsters engaged in the work stoppage as described above with an object of forcing the assignment of the disputed work (assuming it was limited to lubricating trucks) to its members rather than to employees represented by the Operating engineers. Such circumstances are sufficient to invoke the Board's jurisdiction to hear and determine the dispute within the meaning of Section 8(b)(4) and Section 10(k) of the Act. D. 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 relevant factors and the Board has held that its determination in jurisdictional dispute cases is an act of judgment based upon common sense and experience in balancing such factors.3 The record shows that although both unions have contractual relations with the Employer, neither has been certified by the Board. As to their respective 'International Association of Machinists, Lodge No 1743, AFL-CIO (J. A. Jones Construction Co ), 135 NLRB 1402, citing N.L R.B v. Radio & Television Broadcast Engineers Union Local 212 (Columbia Broadcasting System), 364 U.S 573. 25 contracts, the Teamsters contend that its contract covers all lubricating work involving equipment operated by employees it represents. In support of its position, the Teamsters points out that its contracts carry within their job classifications the categories of "Fuel and/or Grease Truck Driver or Fuelman," and "Automotive Oiler or Greaser." The Operating Engineers contract contains the following classification: "Lubrication & Service Engineer (Mobile & Grease Rack)." From the quoted contract classifications it would appear that the question of operating a mobile lubrication truck could fall within the language of either contract. However, the Teamsters contract does not specifically require that the work of mobile field lubricating of Teamster driven equipment be performed by an employee represented by the Teamsters.4 Under these circumstances, we conclude that neither contract standing alone compels an award to either group of employees. Past and area practices, although not definitive, tend to support, the Employer's award of the work to the operating engineers . As to the Employer's practice, the evidence submitted by the Employer shows that for the past several years employee Moss, a member of the Operating Engineers, has manned the Employer's mobile grease truck, and that during this same period, he has performed lubricating work on trucks normally left in the field. At the same time, however, the record also shows that during the 1966 and 1967 peak operating seasons the Employer activated a second grease truck to work in the field and assigned employee Levitt, a member of the Teamsters to drive it. Levitt was first hired in June 1965 and again in 1966 as a driver on a "redi-mix" truck. In July 1966, he was transferred to the second grease truck, and following this assignment he and Moss more or less divided up the lubricating work, both working on Engineer equipment as well as trucks. When the second truck broke down in the fall of 1967, Levitt was assigned to work with Moss. Thus, the record shows that although the operating engineer has performed this work for the Employer over a 10-year period, during recent peak periods an employee represented by the Teamsters has likewise performed these same functions. As to the area practice, again the record shows that on highway and other heavy construction jobs similar to those of the Employer, operating engineers generally operate the lubrication trucks. At the same time, Teamster witnesses testified to several instances where the lubrication trucks were operated by members of their unions 'As noted, the Teamsters does not claim the work of lubricating the equipment operated by employees represented by the Operating Engineers. 'The Employer, in addition to his own as well as the area practice, introduced into evidence "guidelines" prepared in February 1967, by the area Associated General Contractors dealing with this particular problem In short, the guidelines proposed that trucks used exclusively for fueling be assigned to Teamsters, trucks used exclusively for lubrication be assigned to Operating Engineers, and combination trucks, i .e , fueling and 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to efficiency of operation and skills involved, the record clearly shows that only one mobile lubrication truck was needed, and that the bulk of the work performed by the operator of the mobile lubrication truck is related to equipment normally handled by operating engineers. Thus, the Employer's witness testified that for every truck it has in the field, there are approximately three pieces of engineering equipment also at the jobsites. As to the skills involved, it would appear that both Moss, the Operating Engineer and Levitt, the Teamster, are qualified to perform the limited work of lubricating trucks owned by the Employer. However, the testimony shows that apprentice engineers spend part of their training program in the Employer's shop, where all repair work on both engineering -equipment and trucks is performed by employees represented by the Operating Engineers. We view the dispute to be decided here as a narrow one, limited to the work of manning the mobile lubrication truck and lubricating the Employer's equipment, including trucks, in the field. Upon consideration of all pertinent factors in the entire record, we shall not disturb the Employer's assignment of the disputed work to an employee represented by the Operating Engineers. The Employer is satisfied with the results achieved by its assignment and desires no change in its practice. Only one such truck is now needed and the operating engineer is sufficiently skilled to perform the work in question, has had the work assigned to him by the Employer, has been represented by the Operating Engineers for approximately 10 years, and currently operates under a contract which includes language supporting the Operating Engineers' claim that operation of the mobile lubrication truck properly belongs to operating engineers . Accordingly, we shall determine the existing jurisdictional dispute by deciding that the operating engineer, represented by the Operating lubrication, be divided between Operating Engineers and Teamsters Although this is the very position taken by the Operating Engineers in its earlier conversations with the Teamsters over the dispute, we find that the guidelines are inconclusive in that they were unilaterally prepared and were not subscribed to by either the Operating Engineers or the Teamsters Engineers, is entitled to the work. of manning the mobile lubrication truck and lubricating the Employer's equipment, including trucks, in the field. In making this determination, we are awarding the work in question to employees represented by the Operating Engineers, but not to the Operating Engineers or its members. Our present determination 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 proceeding, the National Labor Relations Board hereby makes the following determination of the dispute. 1. Operating engineers employed by Mercer-Frazer Company, who are represented by Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO, are entitled to perform the work of manning the Employer's mobile lubrication truck and lubricating the Employer's equipment, including trucks, in the field. 2. Teamsters, Warehousemen and Auto Truck Drivers, Local No. 684, 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 the Employer to assign the above work to employees who are represented by it. 3. Within 10 days from the date of this Decision and Determination, Teamsters, Warehousemen and Auto Truck Drivers, Local No. 684, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America shall notify the Regional Director for Region 20, 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 work in dispute to teamsters rather than to operating engineers employed by the Employer.