Sand Quarry and Gravel Pit Operators

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sand Quarry and Gravel Pit Operators ; and Dump Truck Operators Employers Council and International Union of Operating Engineers Local 139 and Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local No. 695 , of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-UC-44 June 30, 1969 DECISION AND ORDER GRANTING PETITION TO CLARIFY UNCERTIFIED BARGAINING UNIT BY MEMBERS FANNING, BROWN, AND ZAGORIA Upon a petition of Sand Quarry and Gravel Pit Operators; and Dump Truck Operators Employers Council for clarification of unit duly filed on February 17, 1969, under Section 9(b) of the National Labor Relations Act, as amended, a hearing was held on April 21, 22, and 23, 1969, before James F. Bard, Hearing Officer. On April 29, 1969, the Regional Director for Region 13 issued an order transferring the case to the Board. Thereafter, briefs were filed by the Petitioner and Unions. 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. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employers are engaged in commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Unions are labor organizations within the meaning of the Act, and both claim to represent certain employees of the Employers. 3. The Employer-Petitioners filed the petition herein in order to seek clarification as to whether certain employees referred to as "pit truck operators" should properly be included in the bargaining unit represented by Operating Engineers Local 139 or the bargaining unit represented by Teamsters Local 695, herein called Operating Engineers and Teamsters. All parties agree that the Board's procedures for clarifying units are properly brought into play in this case.' The Petitioners and Operating Engineers allege that the pit truck operators have been historically 'See generally the discussion in Brotherhood of Locomotive Firemen and Enginemen . 145 NLRB 1521, 1523-24, and Seaway Food Town, Inc , 171 NLRB No 107, involving clarification of noncertified bargaining units. represented by the Operating Engineers at the locations involved herein. In addition, they maintain that the Operating Engineers contract clearly provides for inclusion of pit truck operators, while the Teamsters contract clearly specifically excludes such employees. They request that the Board clarify the existing units accordingly and thereby put to rest the current controversy regarding the unit placement of the pit truck operators. The Teamsters maintain that the prevailing industry practice is for the pit truck operators to be represented by the Teamsters. The Teamsters further point out that the type of equipment utilized in the pit truck operation is signiftm- because the Teamsters contract covers all truckdrivers and thereby necessarily includes pit truck operators. Therefore, the Teamsters contend that the existing units should be clarified by the Board by the inclusion of pit truck operators in the Teamsters unit.' On or about May 14, 1968, Madison Sand and Gravel Co., Inc., hired Oscar Nelson as a pit truck operator. Nelson was hired "off of the street" and was not affiliated with either of the Unions, both of whom had contracts with the above Employer. Once employed, Nelson was first approached concerning union membership by the Teamsters and subsequently by the Operating Engineers. It appears that the employer refrained from advising Nelson as to which Union he should join. Nelson was merely told that he would eventually have to sign up with the Union. Nelson signed a Teamsters application, an action which gave rise to the instant unit issue between the parties herein. The record shows that since 1962 the Sand Quarry and Gravel Pit Operators, an association comprised of nine employers engaged in pit and quarry operations, has had a series of collective-bargaining agreements with the Operating Engineers. Until 1966, these agreements included a job classification described as "dumpster operator." In the 1966 agreement this classification was changed to "pit truck operator."' Since 1962, the Dump Truck Operators Employers Council, an association comprised of approximately 30 employers engaged in hauling sand, gravel, and aggregate, as well as some pit operations, has had a 'The Teamsters as a first alternative position contend that the employees performing the duties of a pit truck operator should he included within the unit and its contract only where the individual employer-members of the pit operators multtemployer group have an operative labor agreement with it, and employ other truckdrivers which would make such contract operative As an alternative the Teamsters state that in the event the Board determines that the unit definition of the multiemployer pit operators must be drawn without reference to whether or not each employer-member has employees covered by both union contracts, the Teamsters request the Board to find that the employees working as pit truck operators, for all employer members of the council be included in the Teamsters unit 'The unit consisted of all employees in the classifications of mechanic and welder, proportionary plant operator, millwright, shovel, crane & dragline, dozer & tractor operator, high lift & end loader operator, crusher operator, pit truck operator, blaster, blaster helper, large drill operator, small drill operator, feeder man , and miscellaneous labor 177 NLRB No. 59 SAND QUARRY AND GRAVEL PIT OPERATORS series of collective-bargaining agreements, with the Teamsters.' There are eight employers who are members of both Associations and thereby have association contracts with the Operating Engineers as well as the Teamsters. However, the record shows that only two of these eight employers, Madison Sand and Gravel Co., Inc., and Madison Stone Co., Inc., presently employ pit truck operators at their facilities on a regular basis to transport the raw material from the quarries to the crushers. All other members of the Association who have pit operations employ portable conveyors and/or material crushers right in their pits, thus eliminating the use of pit trucks. Although Madison Stone Co., Inc., is a member of both associations, it does not have a contract with the Teamsters nor does it employ over-the-road drivers, and its pit operations including the use of two pit trucks are exclusively handled by the Operating Engineers with whom it has a collective-bargaining agreement. The record herein discloses that the pit unit employees perform the functions of digging out the raw aggregate from the pit with the use of power equipment and moving such, either by the use of pit trucks or portable conveyors to crushing machines. All of the equipment used in performing the above tasks, including the crushing machines, are operated, serviced, and repaired by pit employees who work exclusively within the pit and are in the unit represented by Operating Engineers. Pit truck operators have work contacts and common supervision with pit employees. The Teamsters unit employees perform nonpit work. They belong to the unit of truckdrivers who are engaged in the delivery of over-the-road orders of graded aggregate and belong to the Teamsters. Concerning the use of pit trucks at Madison Sand and Gravel Co., Inc., the evidence discloses that employees belonging to both units have performed the duties of pit truck operators.` In addition, the evidence shows that at peak periods during the busy 'The unit covered by the Teamsters contract is "all employees excluding office, clerical, sales and administrative employees, supervisors and those employees under the jurisdiction of the operating engineers and common laborers" 'Employees Lovell, Gresheim , Butters, Williamson, Lee, and Gosdeck, all members of the Operating Engineers, had operated the pit trucks for considerable lengths of time Employee Deneen, who was a Teamster and is now an Operating Engineer, and employee Zaemisch , who was a reamster - Operating Engineer - Teamster, also operated the pit trucks Employee Martinson , a Teamster , operated a pit truck from the spring through the fall of 1967 Martinson had been hired as an over -the-road driver but due to a drinking problem was reassigned to a pit truck which required no registration or chauffeurs license as it was used exclusively on private property Employee Kohlman, who was a student, worked during the 1968 summer season and during that period belonged to the Teamsters 535 season over-the-road drivers have been assigned with their trucks to the pit to haul raw aggregate to the crusher when demand exceeded the normal supply of material. Unlike over-the-road drivers, pit truck operators need not be licensed as they do not leave their employer's premises and the equipment usually used does not meet the same standards. Although the record before us shows that employees represented by the Teamsters have operated pit trucks for several members of the Sand Quarry and Gravel Pit Operators, the evidence fails to establish that such use resulted from any contractual arrangement between the parties or from an established practice. The evidence shows that at Hartland-Verma Sand & Gravel Co., this arrangement resulted from an informal agreement between the Employer and Operating Engineers. The evidence further discloses that this was allowed due to the fact that it entailed the use of registered trucks ahd was utilized for a temporary period until the Employer's portable dredge system was made operational, thus eliminating the use of these trucks as pit trucks. In light of the foregoing facts, including particularly the location and nature of the work performed by "pit truck operators," which is clearly seen to be the same as that performed by employees formerly classified as dumpster operators, the long inclusion of dumpster operators in this unit of pit employees represented by the Operating Engineers, the exclusion from the unit represented by the Teamsters of employees within the jurisdiction of the Operating Engineers, and the community of interests shared by the "pit truck operators" and other pit employees by virtue, inter alia , of their work contacts and common supervision, we find that the pit truck operators are included within the unit represented by the Operating Engineers, and we shall clarify the unit accordingly. ORDER It is hereby ordered that the existing contract unit represented by International Union of Operating Engineers Local 139, be, and it hereby is, clarified by specifically including all employees who are employed as pit truck operators by employer-members of the Sand Quarry and Pit Operators Association. He was employed as an over-the-road driver and because of difficulties in finding addresses was reassigned to drive a modified dump truck which was used as a pit truck and worked within the pit the remainder of his employment except for occasional over-the-road deliveries