Local 294, Teamsters

LOCAL 294, TEAMSTERS 117 Local. 294, international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Eastern New York Construction Employers, Inc. and Local 106, International Union of Operat- ing, Engineers, AFL-CIO; Locals 190,157 and 452, Laborers International Union- of North America, AFL-CIO; Albany, Schenectady,Troy and Vicinity District -Council of Carpenters; Local 12, Interna- tional Association of Bridge, Structural and Orna- mental, Ironworkers, AFL-CIO; and Locals 6, 16, S, 61, 67,10 and 77, Bricklayers, Masons,-Plasterers, Marble, Tile and Terrazzo Workers International Union, AFL-CIO. Case 3-CD-360 July 19, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Sectjpn 10(k) of the National Labor Relations Act, as amended, following charges filed-by the Eastern New York Construction Employers, Inc.," alleging that Local 294, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America,2 has violated Section 8(b)(4)(D), of the Act. A duly scheduled hearing was held before Hearing Officer Paul E. Weil on April 26 and 27,1971. 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 Association, Local 294, and Local 106, Interna- tional ,Union, of Operating Engineers, AFL-CIO,s appeared at the hearing and were afforded a full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence on the issues. The remaining,labor organizations named in the notice of hearing did not appear at the hearing or otherwise. Certain letters and telegrams from the other labor organizations purporting, to state their disinterest in the proceedings or in the work which is in issue herein were received in evidence. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record4 in this case including the 1 Hereinafter referred to as the Association. 2 Hereinafter referred to as Local 294 or the Teamsters. ¢ Hereinafter referred to as the Operating Engineers. I The Association's motion to correct the record insofar as it incorrectly states the name of Teamsters Business Agent Anthony Carusone is hereby granted. brief of the Association and the letter brief of Local 294, the Board makes the following findings: 1. THE BUSINESS OF THE ASSOCIATION The parties stipulated to the following facts: The Eastern New York Construction Employers, Inc., is an organization of employers in the building and construction industry including various employers in and around the city of Albany and eastern New York. The Association exists in part for the purpose of engaging in collective bargaining with labor organiza- tions on behalf of its members and on behalf of nonmembers who have designated it as their collec- tive-bargaining representative. Members of the Asso- ciation, and nonmembers who have designated it as their representative for the purpose of collective bargaining, annually do business in interstate com- merce in excess of $500,000. We find that the Association is 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. U. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that the Respon- dent, the Operating Engineers, and each of the various potential intervenors named in the notice of hearing are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The State of New York has a huge' construction project underway on approximately 100 acres of land in the business district of Albany, New York. The project is commonly known as the South Mall project. For some time the assignment of the work of fueling construction- equipment at the site has been a- contested issue. In 1967, the Board issued a Decision and -Determination of Disputes in which it awarded the aspects of the fueling operation-involved'in that proceeding to ' employees represented by the Operat- ing Engineers as against the claims of Local 294. Awarded to employees represented by the Operating Engineers was the fueling of construction equipment, including driving rigs, truck cranes and portable welding machines, by fuel delivery, by truck hose, and by portable drums and cans. After the Board's decision the Teamsters continued in negotiations to 5- 165 NLRB 348. In a subsequent proceeding the Board found that Local 294 had engaged in conduct violating 8(b)(4)(1) and (ii) in its continuing efforts to obtain assignment of the work to the employees its represents. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 180 NLRB No. 75. 192 NLRB No. 22 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pursue its claim to fueling, of construction equipment, including the work awarded to employees represented by the Operating Engineers, with the Association. The result was the inclusion of a provision in the Teamsters' I 967 contract with the Association provid- ing a 50-cent-per-hour premium above normal wages when a teamster did not handle the fuel nozzle from the fuel tank. Upon the expiration of that agreement in 1970, the parties negotiated a new contract which provided a wage rate for a teamster handling the fuel nozzle. For a time thereafter, the parties continued in effect the 50-cent provision. However, in early 1971 the Teamsters filed, grievances against certain of the employers party to the contract claiming the entire fueling operation. Pursuant to the collective-bargaining agreement a grievance meeting was called to dispose of the Team- sters' grievance. Present at the meeting, in addition to the Teamsters, were representatives of South: Mall Constructors, DIC Concrete Corporation, and Foster-Lipkin Construction Company; all parties to the contract. At that meeting the Teamsters claimed that employees it represents should handle all fuel- ing at the jobsite including carrying the fuel to the equipment., Its claim extended to carrying 5-gallon cans of fuel obtained from 55-gallon storage drums to wherever it was needed. The Association indicated that the Operating Engineers claimed the fueling of equipment operated by the employees they represent, and took the position that the assignments would continue as they were in the past; that is, the craft operating the equipment would fuel it. The grievance committee ruled on March 11, 1971, that,, according to the intent of the collective-bargain- ing agreement between the Association and Local 294, all on-site fueling, from a fuel truck including nozzle shall be handled by the teamster fuel truck drivers. The grievance committee considered the Teamsters' claim as to the transporting of fuel to wherever it was needed, but was unable to reach a determination as to this claim. Thereafter, on March 15•, 1971, the Teamsters began picketing virtually all the construction gates at the South Mall project. The picket signs on each gate contained the same wording except for the insertion of the appropriate employer's name. - The signs read "Strike . . . (the Employer's name) . . . failed to abide by decision of the joint board." Picketing continued until March 22, 1971. A meeting was held by the Association on March 15, 1971, in an attempt to resolve the issues causing the picketing. Present were representatives of the Associ- ation, Teamsters, and South Mall Constructors. In that meeting, the Teamsters claimed any and all fueling. The employers present agreed that the, fuel s The Charging Party has moved to amend the notice of hearing to include this work. The Hearing Officer refused to grant this motion. It has truck was the work' of Teamsters;' but obtaini`iig: of fuel, and actual fueling' of all construction equipment was assigned and belonged to the craft Operating the equipment. At a meeting in the-office of the New°`YorkState Office of General- Services ` in,-early April •1971 the subject of fueling was again discussed."Present were representatives of most of the various labor unions, including the Operating Engineers and Teamsters. No employers were present. Mr. Harry Livingston;' Labor Relations Consultant Office of `General Services New York State, testified that at that meeting there was a general feeling that the teamsters were to bring` the fuel to the site and handle the nozzle, including both the fuel being put into the storage tank and fuel that went directly from the truck into the `equipment. He further testified that a majority of the unions present, with the exception of the Operating Engineers, agreed with the Teamsters that the teamsters would bring fuel from the storage equipment to the equipment and that the operator would then place the fuel in the equipment. However, Mr. Ralph E. Cataldo, presi- dent and assistant business representative of Local 190 of the Laborers, testified that there had' always been an understanding between Local 294-and Local 190 that the ' teamsters would get the fuel ""there." However, when he further described-. what the teamsters would do he stated that the teamsters would bring the fuel to a storage area and that the laborers would then go to the, particular area and pickup the fuel in , order to fuel their equipment ras well as the equipment of the carpenters and masons. B. Work in Dispute The Teamsters acknowledged ' that they initially claimed the entire process of fueling the equipment. However, they have now modified 'their claim' to include only delivery of 'the fuel to the actual location of the work. They acknowledge that the actual fueling of the machines is the work of the craft using such machines with the exception of those machines` which are fueled directly from the truck. The actual delivery of the fuel to the construction site by the use of'trucks, including the placing of the fuel in the storage tanks `or directly into equipment, is not involved in ' this proceeding.6 C. Contentions of the Parties The Association and the Operating Engineers contend that the employer assignment of the work of fueling the equipment including the obtaining of fuel from storage areas should be- assigned to the craft operating the machines for the, following ° reasons: renewed that motion before the Board. The motion is hereby denied. LOCAL 294, TEAMSTERS area practice, efficiency and economy of operations, and employer assignment. The Teamsters contends the work should be assigned to employees whom it represents because of the following factors: area practice and contract requirements. D: The Applicability of the Statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8(b)(4)(D) of the Act._ The Regional Director was satisfied upon the basis of such investigation that there was reasonable cause to believe that a violation had been committed and therefore directed- that a hearing beheld in accordance with Section 10(k) of the Act. On ' the basis of the entire record, including the Teamsters picketing during March 1971alleging that the employers represented by the Association were, failing to meet the terms of the grievance committee award of work to the teamsters, we find that there is reasonable cause to believe that a violation of the Act had occurred and that the dispute is properly before the Board for determination. E. The Merits of the Dispute As the Board stated in J. A. Jones Construction Co., 7 we shall determine the appropriate assignment of the disputed work and in each case present a resolution under Section 10(k) of the Act only after taking into account and balancing all relevant factors. 1. Employer preference The employers had assigned the work in dispute here to the crafts who operate the equipment involved. The Association prefers an award to these employees. This factor favors an award to the craft operating the equipment involved. 2. Industry and area practice The evidence presented tends to show that prior to the Teamsters claim, the practice was for employees using the equipment to fuel their own equipment including the obtaining of the fuel from the storage area. In particular, the Operating Engineers presented evidence which established that all of the equipment which was operated by an operating engineer was fueled by the operator, including the obtaining of fuel from the storage area. A Laborers representative testified that the employees it represents operated in a similar manner and that employees it represents obtain the fuel for the masons and carpenters. The Teamsters claim of area practice is based on the 119 assertion that the other unions, with the exception of the" Operating Engineers,' have "acquiesced in its claims. However, it is not clear from the record that that is the case as Laborers president and assistant business agent testified that the' Laborers agreed only that the Teamsters"would bring the fuel to the storage areas and that the fuel would be obtained from the storage areas by the craftsIinvolved. This factor favors an award to the craft operating the equipment involved. 3. Contract The Teamsters bases its claim for the work primarily on its claim that its contract with the Association requires such an award. Neither that contract nor the Association's contract with any `of the other unions specifically sets forth who is to handle the disputed work. The Teamsters contract with the Association does contain a. wage rate for "fuel truck on the site (including nozzle)," which the Teamsters claims amounts to award of the work to employees it represents. However, the grievance committee was only able to agree that the provisions required an award of fueling from the truck into storage tanks and directly into the vehicle from the truck. We find that this factor favors none of the interested unions as their contracts do not clearly cover the disputed work. 4. Efficiency and economy of operations The evidence indicates that either employees represented by the Teamsters or the craft operating the machines involved could perform the disputed work without loss of time on the job. However, to the extent that some of the employers do not presently employ teamsters they would be required to hire such employees for what would in some cases be work which requires a relatively small percentage of the working day. To the extent this factor favors either group of employees, we find that it favors the assignment of the work to the craft operating the equipment. Conclusions In each case where a factor favored the assignment of the disputed work to one or the other group of employees, we have found that it favored the assignment of the work to the craft employees operating the equipment. Thus, on this record we can find no compelling reason for disturbing the employ- ers' assignment of the work. Accordingly, we shall determine the existing jurisdictional dispute by 7 International Association of Machinists, Local No. 1743, AFL-CIO (J. A. Jones Construction Co.), 135 NLRB 1402. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD awarding the work of delivering of the fuel to the actual location of the work to the craft employees operating the machines rather than to employees represented by the Teamsters. In making this determi- nation, we are assigning the disputed work to the craft employees operating the equipment and not to unions they are represented by or the members of those unions.8 Our present determination is limited to the particular dispute 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 Dis- pute: 1. Members of the various crafts employed by employers who are members of or represented by the Eastern New York Construction Employers, Inc., are entitled to obtain the fuel from storage areas for the B Nor is this award to be taken as affecting the practice of having employees represented by the Laborers obtain fuel for equipment operated equipment they operate at the South Mall Construc- tion project. 2. Local 294, International Brotherhood of Team- sters, 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 employers who are members of or represented by the Eastern New York Construction Employers, Inc., to assign such work to employees represented by it. 3. Within 10 days from; the idate ^of !this, Decision and Determination of Dispute, Local 294, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, shall notify the Regional Director for Region 3, in writing, whether or not it will refrain from forcing or requiring employers who are members of or represented by the Eastern New York Construction Employers, Inc., by means proscribed by Section 8(b)(4)(D) of the Act to assign the work awarded above in a manner inconsistent with the above determination. by employees represented by other unions.