Local 294, Teamsters

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Bethlehem Steel Corporation and Local 106, International Union of Operating Engineers, AFL-CIO. Case 3-CD-220 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 by the Bethlehem Steel Corporation, herein called the Employer, alleging a violation of Section 8(b)(4)(D) of the Act by Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters or Respondent. The charge alleges, in substance, that the Teamsters induced and encouraged the employees of the Employer to engage in a strike or refusal to work, with an object of forcing or requiring the Employer to assign particular work to employees represented by Respondent rather than to employees represented by Local 106, International Union of Operating Engineers, AFL-CIO, herein called Local 106. Pursuant to notice, a hearing was held before Hearing Officer Thomas J. Sheridan on October 1 and 2, 1968. Although notified, Respondent did not appear at the hearing. All other parties 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.' Pursuant to the provision 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. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Bethlehem Steel Corporation is a Pennsylvania corporation engaged in the construction and erection of structural, steel and related services in the New York State South Mall project in Albany, New York, pursuant to three contracts with the State of New York. During the past 12 months, the Employer has purchased and caused to be 'Respondent sent telegrams stating it was disclaiming any interest in the work involved and these telegrams were received in evidence. Local 106 appeared by its attorney, claimed the disputed work on the jobsite and in the area, but did not participate any further in the hearing. transported into the State of New York from other states goods and materials valued in excess of $50,000, and during that same period it sold and shipped from New York State to points located outside New York State steel and related products valued in excess of $50,000. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED We find that the Teamsters and Local 106 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Basic Facts The work in dispute involves the fueling of certain equipment on the construction jobsite at the, South Mall, Albany, New York. In February 1967, the Employer began work involving the erection of steel in connection with the construction of the motor vehicle building, the tower building, and the platform at the South Mall construction site. Bethlehem uses various types of equipment on the job, manned by employees represented by Local 106, including cranes, derricks, air compressors and motor generators. This equipment is fueled with diesel fuel which is stored at the Employer's north Albany yard, and with gasoline which is stored at the Employer's west Albany yard. The fuel is stored in 50 gallon barrels and 300 gallon tanks. Steel is also stored in those yards and at the Watervliet yard, and the steel is hauled to the construction site by subcontractors whose drivers are represented by Respondent. The Employer has from 145 to 150 employees at the jobsite, all but one being members of either Local 106 or Local 12, International Association of Bridge, Structural and Ornamental Iron Workers. One employee, a driver, is a member of Respondent. Bethlehem has no contracts with local unions, but does have contracts with the International Union of Operating Engineers, AFL-CIO and the International Association of Bridge, Structural and Ornamental Iron Workers. In February 1967, the Employer contracted with Atlantic Richfield to furnish fuel to its jobsite. The Atlantic driver belonged to an Independent Union not affiliated with the Teamsters and Kakely, Bethlehem's driver and the only Teamster, informed Carusone, Respondent' s business agent, of this in March 1967. Carusone told Kakely it was all right provided Kakely stayed with the Atlantic driver as long as he was fueling Bethlehem's equipment. Subsequent to this conversation, Kakely followed the Atlantic driver and during any fueling operations would assist him in pulling out the hose and handing 174 NLRB No. 6 LOCAL 294, TEAMSTERS it to an employee represented by Local 106 who would then do the fueling. On May 1 , 1967, a contract between Respondent Union and Eastern New York Construction Employers, Inc., became effective which provided that when a member of Respondent Union does not handle the nozzle during fueling operations, the Company pays Respondent union members 50 cents more per hour , Bethlehem is not a member of this employer association . Thereafter, Kakely informed Carusone that while he did not handle the nozzle he was receiving the higher rate. In March or April 1968 , Bethlehem requested Atlantic to put a Union driver on their truck in order to eliminate the expense of having the Company driver ride with the Atlantic driver. About this same time, Carusone told Kakely he was not to use Atlantic fuel, to get another oil company, and to give Bethlehem the name of one of the companies on the Mall project . Carusone also informed Kakely that the Atlantic driver had attempted to get a book, but he was not the type they wanted in the Union. Carusone further informed Kakely that he was to ride with the fuel driver even though the driver was union and Kakely was to handle the nozzle. Kakely objected, stating it would cost him 50 cents an hour, and referred to the Fehlhaber-Horn dispute,2 in which the National Labor Relations Board had awarded the work of handling the fueling nozzle to the engineers. Carusone told Kakely he did not care - that Kakely was to handle the nozzle. Kakely informed Bethlehem of his discussion with Carusone and Bethlehem thereafter changed its source of fuel supply from Atlantic to McEnaney Oil Supply Company, a supplier already on the Mall, whose drivers were represented by Respondent . The Employer told Kakely that he could not ride on the truck with the fuel truckdriver. When the McEnaney driver came on the job, he attempted to put the nozzle in the fuel tank , but the master mechanic would not allow it. On Friday, June 14, 1968, Carusone spoke to Kakely on the , telephone and complained of materials being unloaded without a teamster being present. Carusone then spoke with the Employer and told Bethlehem it would have to put more teamsters on the job or he would picket. Kakely was then told by Carusone that the teamsters were going to strike. Kakely reported to the Labor Temple where he heard Carusone, in speaking to his attorney, state that "they didn't even have the nozzle on the job." On the following Monday, under instructions from Carusone , Kakely picketed the Bethlehem jobsite with signs reading , "Truck drivers employed by Bethlehem Steel Company do not enjoy the benefits and protection of a Local 294 Contract." 'See, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 294 (Fehlhaber-Horn), 165 NLRB No. 44. 31 After picketing began, Carusone told the Employer he wanted more teamsters at each location composing the jobsite and wanted the job of fueling in its entirety. He also told the company attorney on two occasions that Bethlehem was to employ a teamster to handle the nozzle, or words to that effect. During the picketing, some drivers for outside suppliers for Bethlehem refused to cross the picket Ime. Picketing continued until enjoined by a temporary injunction issued by the United States District Court of the Northern District of New York on July 16, 1968. B The Scope of the Dispute The Regional Director and Bethlehem both contend that the award in the instant case should be broad as possible and extend beyond this jobsite. In support of this contention, they point to a previous award made by the Board in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Local 294, (Fehlhaber-Horn), supra, which involved the same two contesting unions at this same South Mall project in Albany, New York. In addition, the Regional Director introduced testimony in connection with a previous 8(b)(4)(D) charge filed by Bruno Trimpoli General Construction Company against Respondent, which charge was subsequently withdrawn based upon a cessation of picketing and a claim by Respondent Union that they were not claiming the work of handling the nozzle during fueling. As noted previously, Respondent has again disclaimed any interest in the work involved in the instant case. C. Contentions of the Parties The Employer contends that Respondent union induced employees to engage in a strike and did cause the jobsite to be picketed in an effort to force Bethlehem to assign the work of handling the nozzle in the fueling of construction equipment, barrels, and tanks at its South Mall jobsite, including its storage yards, to members of the Teamsters rather to employees represented by Local 106, to whom the Employer has assigned the work, in violation of Section 8(b)(4)(D). Bethlehem contends that its assignment of the work to Local 106 was correct because it was supported by past practice, the area practice, by the training and knowledge possessed by members of Local 106 as to fueling and equipment, and the Board's previous award in the Fehihaber-Horn decision, supra. Local 106 claims the disputed work on the jobsite as well as in the building and construction industry in the area. The Respondent was duly served in advance of the hearing with, and acknowledged receipt of, a copy of the charge and the amended notice of hearing in which it was specifically designated as the 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent. Respondent did not appear at the hearing, but had sent two telegrams to the Regional Director dated July 23, 1968, and September 26, 1968, disclaiming any interest in the work tasks involved. We find that where all parties to the dispute are served with notice of hearing and afforded opportunity to participate and to introduce evidence, the purposes intended for hearings under Section 10(k) are adequately served. Accordingly, we shall proceed to make a determination on the basis of the uncontradicted evidence on the record before us.3 The Regional Director takes the position that the disclaimers are not valid because the Respondent has engaged in the same activity involving the same disputed work on two other occasions, mentioned heretofore, including one in which the work was awarded to the other competing union, Local 106, by Board determination. D. Applicability of the Statute Before the Board may proceed with a determination 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) has been violated. The language on the picket sign and the disclaimers indicate that had the Respondent particpated in the hearing, it would contend that the picketing was only to inform the public that the Employer did not have a contract with Local 294. However, the fact that the picket signs were phrased to emphasize Bethlehem's failure to have a contract with Local 294 does not alter the nature of the dispute which centers on the demand, apparent from Carusone's entire course of conduct, that the work of handling the nozzle during fueling operations, and even fueling in its entirety, be reassigned to members of Respondent. Therefore, we find, on the basis of the record, that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. With respect to the Teamsters disclaimer, the Board has held that such disclaimers are not effective to vitiate on otherwise viable jurisdictional dispute .4 We hold that the disclaimers are not valid here in view of Respondent's entire course of conduct. 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 relevant factors, and the Board has held that its determination in a 'Teamsters Local Union No 5 (Hart-McCowan Foundation Co., Inc.), 147 NLRB 1216, 1219. 'See Cement Masons' Local Union No 524 ( Tabasco Prestressed Concrete Company), 163 NLRB No. 75, Local 1291 , International Longshoremen's Association, AFL-CIO, (Pocahontas Steamship Company), 152 NLRB 676, 679, 680. jurisdictional dispute case is an act of-judgment based upon `common sense and experience in balancing such factors. Certain factors usually considered by the Board in making jurisdictional awards are not present in this proceeding. Thus, the record shows that neither union is certified, there has been no jurisdictional award by 'any joint board, and the Employer has not signed a contract with either of the competing locals. However, there are other factors to be considered. 1. Past practice, assignment, and area practice Uncontradicted testimony shows that for at least the last 19 years, the operating engineers employed by the company have always handled the nozzle in fueling of equipment, and filling barrels and tanks, not only at the present jobsite but in other areas where Bethlehem has engaged in construction. It is also uncontroverted that the Employer has always assigned this work to employees represented by the Operating Engineers, has so assigned the work at present, and that at no time has any employee member of Respondent Union actually handled the nozzle during fueling. Employer witnesses, including representatives of Behtlehem and Local 106 members, testified that on the Mall site the nozzle is always handled during fueling operations by operating engineers employed by other contractors. Additionally, a Local 106 member testified, and it was uncontradicted, that on all construction sites during the last 10 years where he had been employed, the operating engineers handled the nozzle for the fueling operation. 2. Efficiency of operation The record established that an operating engineer is required to have a fire extinguisher present during fueling operations, is charged with responsibility for the care and maintenance of the equipment he operates, and must stop his equipment for fueling.5 The operating engineer is also responsible for receiving the correct fuel, whether diesel or gas, in his rig. Testimony also indicated that in connection with the welding machines, some familiarity with the machines is required in order to know where to put the fuel. Employees represented by Local 106 also are responsible for the storage of barrels, storing them so rain will not enter and making sure the right fuel gets in the right drum. Upon consideration of all pertinent factors in the entire record, we shall not disturb ' Bethlehem's assignment of the disputed work to employees represented by Local 106. Operating engineers have efficiently performed the work for Bethlehem. The present assignment of the work in dispute is 'See New York State Code, Rule No 23, which states that the engine must be stopped while refueling. LOCAL 294, TEAMSTERS consistent with past practice, with area practice, and recognizes that operating engineers have not only the responsibility for seeing their machines are correctly fueled but are technically more knowledgeable and therefore more efficient in performing the disputed work. Accordingly, we shall determine the existing jurisdictional dispute by deciding that operating engineers, represented by Local 106, rather than teamsters, represented by Respondent, are entitled to the disputed work. In making this determination, we are assigning this work to employees who are represented by Local 106, but not to that Union or its members. The Board has previously held that it will not restrict the scope of its determination to a specific jobsite if there is evidence that similar disputes may occur in the future.6 Accordingly, in view of the evidence before us, we hold that the determination in this case applies, not only to the jobsite in which the dispute arose, but to all similar work done or to be done by Bethlehem Steel on any other projects in the Albany area. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of 'International Longshoremen's Association, Local 1576, AFL-CIO (Texas Contracting Company), 162 NLRB No 80 33 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 who are represented by Local 106, International Union of Operating Engineers, AFL-CIO, are entitled to perform the work of handling the nozzle during fueling operations of equipment operated or manned by them and storage barrels or tanks of the Employer on the South Mall project at Albany, New York, or on any of the Employer's projects in the Albany area. 2. Local 294, 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 Bethlehem Steel Company to assign the above work to teamsters represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute , Local 294 shall notify the Regional Director for Region 3, in writing, whether or not it will refrain from forcing or requiring Bethlehem Steel Company by means proscribed by Section 8(b)(4)(D ) to assign the work in dispute to teamsters represented by it rather than to employees represented by Local 106, International Union of Operating Engineers, AFL-CIO.